"California Marriage Separation Agreements"
LAW SOCIETY OF BRITISH COLUMBIA FAMILY PRACTICE PRACTICE CHECKLISTS MANUAL INTERVIEW LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE INTRODUCTION Purpose and currency of checklist. This checklist covers matters to be discussed and information to be collected before the commencement of family law proceed- ings. It focuses on the initial interview with the client, but includes some follow-up from that interview. This checklist is designed to be used with the CLIENT IDENTIFICATION AND VERIFICATION PROCEDURE (A1) checklist. The lawyer should also refer, as appropriate, to the checklists for FAMILY LAW AGREEMENT PROCEDURE (D2), SEPARATION AGREEMENT DRAFTING (D3), MARRIAGE AGREEMENT DRAFTING (D4), FAMILY LAW PROCEEDING (D5), and GENERAL LITIGATION PROCEDURE (E2). This checklist is current to March 1, 2010. New developments: New Supreme Court Family Rules. The Supreme Court Family Rules, B.C. Reg. 169/2009, come into effect on July 1, 2010, governing family law pro- ceedings in the Supreme Court of British Columbia. The new Family Rules, together with the new Supreme Court Civil Rules, B.C. Reg. 168/09, replace the Supreme Court Rules, B.C. Reg. 221/90. Among many other significant changes, there are amendments to the rules for discovery and expert evidence, and new forms. The changes have been incorporated into the British Columbia Family Practice Manual, 4th ed., looseleaf and online (Continuing Legal Edu- cation Society of British Columbia, 2006), and other CLEBC resources. The text of the new Rules can be accessed through the Supreme Court’s website at www.courts.gov.bc.ca/supreme_court/Practice_directions_and_notices/acts_ rules_and_forms. Harmonized sales tax (“HST”). Most lawyers are obliged to collect goods and services tax (“GST”) in accordance with Part IX of the Excise Tax Act, R.S.C. 1985, c. E-15, and provincial sales tax (“PST”) in accordance with the Social Service Tax Act, R.S.B.C. 1996, c. 431. Effective July 1, 2010, PST will be eliminated and lawyers will instead be required to collect HST, also im- posed under the Excise Tax Act. However, collection of PST will continue under rules established for the transition to HST. When billing for legal servic- es provided before and after July 1, lawyers must charge PST and GST (but not HST) if 90% or more of the services are performed before July 1. If less than 90% of the legal services are performed before July 1, lawyers must charge PST, GST, and HST based on the proportion of services performed before and after July 1. PST collection requirements under the transitional rules continue until December 31, 2010. Further information about the PST, GST, HST, and transitional rules can be found at www.cra-arc.gc.ca/harmonization and www.gov.bc.ca/hst. Client identification and verification. Law Society Rules 3-91 to 3-102 require lawyers to follow client identification and verification procedures when retained by a client to provide legal services, subject to various exceptions. See the CLIENT IDENTIFICATION AND VERIFICATION PROCEDURE (A1) checklist for further details. Cash transactions. Law Society Rule 3-51.1 places restrictions on all cash transac- tions and regulates the circumstances in which a lawyer can accept $7,500 or more in respect of any one client matter or transaction. On November 13, 2009, the Law Society amended this Rule to clarify its application in cases where cash retainers are received incrementally, and to indicate what procedure to follow where cash is received contrary to the Rule, but in a situation beyond the lawyer’s control. 6/10 D-1-1 FAMILY PRACTICE LAW SOCIETY OF BRITISH COLUMBIA INTERVIEW PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE Additional resources. For detailed information about family practice, see the British Columbia Family Practice Manual, 4th ed., looseleaf and online (Continu- ing Legal Education Society of British Columbia, 2006); Financial Issues in Family Law, looseleaf (CLEBC, 2006); annual editions of Annotated Family Prac- tice (CLEBC); Collaborative Practice: Deepening the Dialogue (CLEBC, 2004); Family Law Sourcebook for British Columbia, 3rd ed., looseleaf and on- line(CLEBC, 2002); Family Law Agreements: Annotated Precedents, looseleaf and online (1998); Desk Order Divorce—An Annotated Guide, looseleaf and online (CLEBC, 1999); Child Protection Conference (CLEBC, 2009); and Pension Divi- sion for Family Lawyers—2008 (CLEBC, 2008). CONTENTS 1. Preliminary Matters 2. Advise Client and Obtain Instructions 3. Follow-up from Initial Interview 4. Collect Information 5. Collect Documents CHECKLIST 1. PRELIMINARY MATTERS 1.1 When arranging the interview: .1 Ensure that there is no conflict of interest. Do not act for both parties, even in drafting a marriage agreement or issuing a joint action for di- vorce. Refer one party to another firm for independent legal advice. (However, note that a lawyer, including a lawyer who has acted as a mediator for the spouses, may act for both spouses in a joint action for both parties have received independent legal advice in relation to the matter. See the Ethics Committee opinion published in the Benchers’ Bulletin, 2003: No. 2, March-April issue.) .2 Determine if there is a need for an immediate appointment (e.g., physi- cal safety concerns, litigation deadlines). Find out whether proceedings have been commenced against your prospective client and, if so, get the name of your client’s spouse’s lawyer and ask client to bring copies of all court documents and relevant agreements. .3 Consider Law Society of British Columbia Rules on client identifica- tion and verification, and complete the CLIENT IDENTIFICATION AND VERIFICATION PROCEDURE (A1) checklist. Assuming there will be a “fi- nancial transaction”, ask the client to bring identity documents to verify the client’s identity. .4 Consider asking the client to bring all relevant financial information (See items 4 and 5: “Collect Information” and “Collect Documents”). .5 Consider asking the client to write out a history of the relationship and the parties’ respective employment histories for use during the interview. 1.2 Determine client’s general objectives and questions. Discuss relief availa- ble and options. In cases of separation or divorce, discuss the possibility of reconciliation, the counselling services available to the client, the advisabil- ity of negotiating issues of support and custody, and the availability of mediation services (Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 9). Ex- plain the option of the collaborative separation and divorce model. D-1-2 6/10 LAW SOCIETY OF BRITISH COLUMBIA FAMILY PRACTICE PRACTICE CHECKLISTS MANUAL INTERVIEW LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE 1.3 Determine if there is a need for urgent action (e.g., to preserve assets or evidence, for support, for physical safety of individuals). 1.4 Determine if death or bankruptcy of either party is a possibility. 1.5 Aboriginal clients: consider whether a lawyer with Aboriginal law expe- rience should be consulted. Special considerations may apply, whether or not parties and property are situated on or off reserve. 1.6 Provide general legal information and preliminary advice to client. Explain what you recommend be done in the short term, and what further informa- tion and documents you will require before you can render a final opinion. 1.7 Satisfy yourself that client is competent to give instructions. Consider such things as age, mental competence. Assess client’s emotional state and con- sider a referral to a professional counsellor or physician. 1.8 Advise client on the calculation of your account and method and timing of payment and enter into retainer agreement. Consider the use of a “limited scope retainer” if you will be delegating certain aspects of the work re- quired to your client or other professionals. If you will be providing limited scope legal services, ensure client understands the limited scope of the re- tainer and the limits and risks associated with limited services provided and confirm the understanding, where reasonably possible, in writing. 1.9 Consider obtaining retainer funds. Caution: consider Law Society Rule 3- 1.3 Advise client regarding calcu 51.1, which restricts circumstances in which a lawyer can accept $7,500 or more in respect of any one client matter or transaction. 2. ADVISE CLIENT AND OBTAIN INSTRUCTIONS 2.1 Consider and advise client as to whether an action should be commenced or whether mediation, arbitration, or collaborative family law processes are appropriate. 2.2 If the client asks to assist in the collection of financial information, consid- er a limited scope retainer. Note that many financial institutions will not provide information to the lawyer without written authorization from the client, and, in the case of joint accounts, written authorization from both the client and the client’s spouse. 2.3 If client wants a divorce, give a preliminary opinion as to whether the ground exists: .1 Separation for not less than one year immediately preceding anticipated determination of divorce proceeding and separation at commencement of proceeding. .2 Adultery of spouse. .3 Cruelty by spouse. 2.4 Consider possibility of divorce proceedings against client based on existing grounds; advise regarding future conduct that will constitute grounds. Ad- vise regarding the possibility of an award of costs against a co-defendant. 2.5 If client wants a divorce, ensure client understands the meaning and signi- ficance of collusion, connivance, and condonation; .1 Collusion (any agreement, understanding, or arrangement by your client or anyone else to fabricate, falsify, or suppress evidence in order to get a divorce). 6/10 D-1-3 FAMILY PRACTICE LAW SOCIETY OF BRITISH COLUMBIA INTERVIEW PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE .2 Connivance (encouragement by spouse to commit adultery). .3 Condonation (when the innocent spouse has forgiven the other spouse for the adultery, in the sense that he or she would take the adulterer back to live together as spouses). 2.6 Advise client regarding the Federal Child Support Guidelines, the determi- nation of income, and the payment of the “table amount” of child support, plus “special and extraordinary expenses”. If applicable, advise the client regarding the determination of support in “shared custody” situations (that is, where the non-primary residency parent has the children in his or her care more than 40% of the time). If acting for support recipient, ask if client has requested financial information from the other parent, and con- sider seeking instructions to confirm any financial disclosure requests in writing. Advise client regarding the possibility of retroactive child support. 2.7 Advise that under the Divorce Act, when making a spousal support order, the court will consider any economic advantages or disadvantages to both spouses arising from the marriage or its breakdown. 2.8 Discuss the need to retain an accountant or tax consultant (e.g., where there are complex financial circumstances, valuation issues, or tax conse- quences). Determine whether a professional valuation of the assets is necessary, particularly in the case of a separation agreement. If a pension plan is involved, it may be necessary to seek a professional valuation. Ob- tain instructions. 2.9 Advise on issues regarding acquisition and disposition of property during period between separation and settlement. 2.10 Advise client to consider changing beneficiary designations. 2.11 Advise on issues related to the management of joint accounts, joint debts, and joint credit cards during the period between separation and settlement. 2.12 Advise client to gather relevant documents and put them in a safe place, but beware of counselling theft. 2.13 Advise client of the Family Relations Act, R.S.B.C. 1996, c. 128 (“FRA”), provisions respecting guardianship on separation. Advise that sole guar- dianship goes, on separation, to the custodial parent (s. 27). If client is not the custodial parent, advise that he or she will not automatically become guardian if predeceased by the custodial parent (s. 29(2)) and discuss the possibility of obtaining joint guardianship or a covenant that custody will revert to client on the death of the custodial parent (s. 28). 2.14 Advise client regarding effect of interim custody arrangements on ability to obtain final custody. Advise client regarding impact of custody/access ar- rangement on determination of support issues (e.g., shared custody). 2.15 Advise client that FRA provisions concerning division of property do not apply to unmarried spouses; however, unmarried spouses can opt into those provisions by agreement (FRA, s. 120.1). In the absence of an agreement, division of property claims between unmarried spouses are decided on the principles of resulting trust or on the law of remedial constructive trust (see chapter 4 of CLEBC’s Family Law Sourcebook for British Columbia). 2.16 Consider possibility of invoking the law of trusts (e.g., for division of property of unmarried spouses, or to obtain some priority over creditors where spouse is heavily indebted). D-1-4 6/10 LAW SOCIETY OF BRITISH COLUMBIA FAMILY PRACTICE PRACTICE CHECKLISTS MANUAL INTERVIEW LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE 2.17 Determine the tax implications of any proposed support and property division and consider whether another arrangement might be more benefi- cial to client. 2.18 Note any special issues, such as: .1 Where spouse may go bankrupt, consider getting an immediate s. 57 (FRA) declaration of irreconcilability to preserve client’s right to 50% of family assets (bearing in mind that 50% of client’s assets would be available to the trustee). If spouse is entitled to more than 50%, consid- er seeking order for unequal division by use of Supreme Court Family Rule 9-7 (formerly Supreme Court Rule 18A). .2 Where an insolvent spouse is transferring property to the other spouse, avoid contravening the provisions of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3; Fraudulent Conveyance Act, R.S.B.C. 1996, c. 163; Fraudulent Preference Act, R.S.B.C. 1996, c. 164; and Criminal Code, R.S.C. 1985, c. C-46. .3 Where client’s spouse is dying and assets are in his or her name, con- sider seeking an immediate s. 57 (FRA) declaration to ensure that at least 50% of the assets do not fall into estate of deceased spouse. Ad- vise client regarding consequent loss of any right to survivorship. .4 If your client is dying and assets are in his or her name, seek instruc- tions as to client’s wishes on death. .5 If your client is from a same-sex relationship, has ties with an Abori- ginal community, or is a recent immigrant, consider whether advice should be sought from a lawyer who has appropriate experience and knowledge. .6 Aboriginal clients: consider whether a lawyer with Aboriginal law experience should be consulted. Special considerations may apply, whether or not parties or property or both are situated on or off reserve. For example: (a) Property may belong to an Indian band, or otherwise be subject to the Indian Act, R.S.C. 1985, c. I-5, or other legislation (e.g., the Nisga’a Final Agreement Act, S.B.C. 1999, c. 2, for Nisga’a citi- zens). The FRA does not apply to the division of on-reserve matrimonial property. The law is not settled with respect to valuing on-reserve property for the purposes of including compensation to a spouse instead of an order for the division of such property. (b) A child’s Aboriginal heritage is a factor that is considered in determining what custody arrangement will be in the child’s best interests. (c) In calculating child support under s. 19 of the Child Support Guidelines, or spousal support, amounts to be awarded must be ad- justed if one or more parties are exempt from federal and provincial income taxes. (d) In enforcing support payments, if the debtor is an “Indian” (as defined in the Indian Act) who lives on a reserve, the debtor’s in- come and assets may be exempt from many enforcement proceedings (see Indian Act, s. 89). Generally, a non-Indian cannot seize moveable assets situated on-reserve from an Indian. 6/10 D-1-5 FAMILY PRACTICE LAW SOCIETY OF BRITISH COLUMBIA INTERVIEW PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE (e) For further information, see the articles published on the “Abori- ginal Law” page in the “Practice Points” area of the Continuing Legal Education Society of British Columbia website at www.cle.bc.ca. 2.19 Discuss the effect of a divorce, order for judicial separation, or declaration of nullity on an existing will (Wills Act, R.S.B.C. 1996, c. 489, s. 16). Ad- vise client to review will to ensure it reflects client’s present testamentary wishes. 2.20 Advise client regarding making an application for Canada Pension Plan credit splitting. Consider obtaining an opinion from CPP on the effect of equalization of benefits (send authorizations by both parties to the Income Security Program Branch). 2.21 Discuss and consider obtaining instructions to do one or more of the fol- lowing: .1 Set up a meeting (settlement meeting or collaborative meeting) with the spouse and counsel (if any). Consider communicating by letter with client’s spouse advising spouse to seek legal advice and requesting the name of the spouse’s solicitor if spouse already has one. You should al- so consider requesting financial disclosure. .2 Employ an investigator. .3 Obtain a custody/access assessment, or “views of child” report. .4 Retain an appraiser, accountant, and/or business valuator. .5 Draft a marriage or cohabitation agreement (see MARRIAGE AGREEMENT DRAFTING (D4) checklist). .6 Draft a separation agreement (see SEPARATION AGREEMENT DRAFTING (D3) checklist). .7 Commence proceedings, with corollary relief such as custody and support under the Divorce Act (see FAMILY LAW PROCEEDING (D5) checklist) or corollary relief including property division under the Fam- ily Relations Act (see FAMILY LAW PROCEEDING (D5) checklist). .8 Bring an application for interim relief, if required (see FAMILY LAW PROCEEDING (D5) checklist). .9 Bring a variation proceeding if required (see FAMILY LAW PROCEEDING (D5) checklist). .10 Bring an action based in trust law, particularly if parties never married. .11 Apply for partition and sale of real property under the Partition of Property Act, R.S.B.C. 1996, c. 347. .12 Apply for an entry on title under the Land (Spouse Protection) Act, R.S.B.C. 1996, c. 246, if no action commenced. .13 If action commenced, file a certificate of pending litigation in the land title office (“LTO”); file caveat in LTO if no action commenced. .14 Draft a new will. .15 Apply for appointment of a receiver if required. .16 Apply for a change of name by including it as part of relief sought in the statement of claim or statement of defence and counterclaim. D-1-6 6/10 LAW SOCIETY OF BRITISH COLUMBIA FAMILY PRACTICE PRACTICE CHECKLISTS MANUAL INTERVIEW LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE Making a claim is not required if client is reverting to birth name or name client had immediately prior to marriage. .17 Consider declaration of parentage under FRA, s. 6(1)(c). .18 Represent client in proceedings under Child, Family and Community Service Act, R.S.B.C. 1996, c. 46. 2.22 Consider advising client to keep a diary noting contacts with spouse and children and financial information such as expenses related to the marriage breakdown and ongoing expenses, as well as payments made by one spouse to the other, etc. 2.23 Consider getting full retainer in advance (if you do not, and a support order is made against your client, you may be unable ethically to require payment of your account until client pays the support). Include adequate amounts for disbursements, including investigator, accountant, valuator, etc. 3. FOLLOW-UP FROM INITIAL INTERVIEW 3.1 Open file: place checklist in file and make entries in diary and bring for- ward (“BF”) systems, noting relevant limitation periods, such as: .1 FRA, s. 1, definition of “parent”: parent includes a stepparent where the stepparent has contributed to support and maintenance of child for one year and where proceedings are commenced within one year after date that stepparent last so contributed. .2 FRA, s. 1, definition of “spouse”: (a) Where an order was made dissolving a marriage, person must make application under FRA within two years. (b) Where unmarried couple (including persons of the same gender) lived together in a marriage-like relationship for at least two years, person must make application under FRA within one year of date they ceased doing so .3 FRA, s. 68(2): application to vary ante-nuptial or post-nuptial settlement (not fitting definition of marriage agreement) must be made within two years of order dissolving the marriage. .4 Land (Spouse Protection) Act, ss. 1 and 2: may only apply for an entry under this Act where the dwelling was occupied by husband and wife as their residence within period of one year immediately preceding appli- cation. Note that entry expires on divorce. .5 Divorce Act, s. 21(2) and (3), and Court of Appeal Act, R.S.B.C. 1996, c. 77, s. 14(1)(a): 30-day limitation period for appeals. .6 Canada Pension Plan, R.S.C. 1985, c. C-8, ss. 55, 55.1, 55.2, 55.3 (which now apply as well to a “common-law partnership” between two persons who cohabit in a conjugal relationship for at least one year). .7 Land Title Act, R.S.B.C. 1996, c. 250, s. 293(1): caveat expires after two months. .8 Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 56.1(3): tax relief is available only for spousal maintenance paid in the year in which an agreement is signed or a court order is made, and the preceding year (the Act applies as well to a “common-law partnership” between two persons who cohabit in a conjugal relationship for at least one year). 6/10 D-1-7 FAMILY PRACTICE LAW SOCIETY OF BRITISH COLUMBIA INTERVIEW PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE 3.2 Send letter to client confirming the retainer and instructions, setting out the manner in which you will determine your fee for services, stating the con- ditions upon which you have agreed to act, and summarizing the points discussed, including follow-up to be carried out by the client. 3.3 Gather any necessary information. 3.4 Implement initial instructions and continue preparation of case by consult- ing relevant legislation and checklists such as: FAMILY LAW AGREEMENT PROCEDURE (D2), SEPARATION AGREEMENT DRAFTING (D3), MARRIAGE AGREEMENT DRAFTING (D4), FAMILY LAW PROCEEDING (D5), or GENERAL LITIGATION PROCEDURE (E2). 4. COLLECT INFORMATION 4.1 Consider Law Society of British Columbia Rules on client identification and verification, and complete the CLIENT IDENTIFICATION AND VERIFICATION PROCEDURE (A1) checklist. 4.2 Client: .1 Full name, occupation, home and business addresses and telephone numbers, e-mail addresses, and social insurance number. .2 Birthdate and place of birth. .3 Employer/school, address, telephone, position, salary. .4 (If applicable) marital status prior to marriage. .5 Previous surnames. .6 Addresses for last 12 months. .7 Any mental or physical problems relevant to any of the issues in the proceedings. Any medications client is using or has been prescribed. 4.3 Client’s spouse (including common-law spouse): .1 Name, address, telephone numbers, and social insurance number. .2 Birthdate and place of birth. .3 Employer/school, address, telephone, position, salary. .4 (If applicable) marital status prior to marriage. .5 Previous surnames. .6 Addresses for last 12 months. .7 Any mental, emotional or physical problems or other vulnerabilities relevant to any of the issues in the proceedings. Any medications client is using or has been prescribed. 4.4 Marriage or marriage-like relationship: .1 Marriage: (a) Place and date. (b) Whether it was a valid marriage. (c) Whether parties lived together prior to marriage, and, if so, when they commenced cohabitation. D-1-8 6/10 LAW SOCIETY OF BRITISH COLUMBIA FAMILY PRACTICE PRACTICE CHECKLISTS MANUAL INTERVIEW LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE .2 Marriage-like relationship: duration and other particulars of the rela- tionship (e.g., to determine if the parties qualify as “spouses” under the FRA—which for most purposes other than division of property requires a marriage-like relationship for at least two years—and other B.C. sta- tutes; also to determine whether parties are “common-law partners” under the Income Tax Act—which generally requires cohabitation in a conjugal relationship for at least one year—and other federal statutes). 4.5 Whether there is any kind of written or verbal separation agreement or marriage or cohabitation agreement (see FRA, s. 120.1, which affects un- married couples). 4.6 Previous proceedings (and details of when, where, terms, result, etc.), such as: .1 Divorce. .2 Custody order. .3 Support order. .4 Marriage, cohabitation, or separation agreement. 4.7 Children: .1 Names, sexes, birthdates, birthplaces. .2 School or employment details. .3 Past, present, and proposed future arrangements for custody, access, support, etc. .4 Physical, emotional, and educational needs, including special problems. .5 Where custody is an issue: (a) Schools: grades, location (near home?). (b) Who has been involved in day-to-day care of children (e.g., feed- ing, childrearing, assistance with school work, discipline, etc.). (c) Hours of work of each spouse. (d) Regular time of each spouse away from home and children (e.g., evening recreation). (e) Involvement of each spouse in extra-curricular activities of child- ren (e.g., driving children to activities, attendance at games or recitals, participation in games). (f) Any unusual behaviour of either spouse toward children, and the negative impact it has (e.g., swearing, abuse of alcohol, sexual practices, derogatory remarks, physical abuse). (g) Involvement with family (e.g., grandparents, aunts, and uncles), friends, community activities, church, etc. in area of home. (h) Relationship of each child to each other child and to each spouse. (i) Whether there are medical or educational records relevant to issue of custody. (j) For an Aboriginal child, particulars of the child’s involvement with an Aboriginal community. .6 Where client wants an order prohibiting the spouse (or another person) from interfering with children: (a) Incidents causing mental or physical harm to children. 6/10 D-1-9 FAMILY PRACTICE LAW SOCIETY OF BRITISH COLUMBIA INTERVIEW PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE (b) Mental or physical problems the children are experiencing, includ- ing, if possible, any written corroborating reports from teachers or doctors. (c) Effect of behaviour on children’s school work, sleep, play with other children, relationship with client, etc. (d) History of psychiatric problems, temper situations, or past physical or mental abuse. (e) Criminal record. .7 Where there are concerns that the children may be removed from the jurisdiction: whether either spouse wishes to move out of the jurisdic- tion with the children, and the reasons for such a move (e.g., to enable the spouse to obtain better employment or be closer to family else- where). 4.8 Separation: .1 Place and date. .2 Particulars, including events leading up to it. If Divorce Act applies, find out if there has been any adultery by either spouse, or if either spouse might allege any physical or mental cruelty. (a) If adultery is alleged, determine whether alleged acts took place before or after separation, details that are known (identity of third person, places, and times), whether client or spouse is willing to admit. (b) If cruelty is alleged, collect details of behaviour and specific acts of cruelty and any physical manifestations, medical reports, police re- ports. .3 Whether there have been attempts to reconcile. .4 Whether client or spouse has received counselling. .5 Whether spouses have lived together since separation and, if so, the dates and details. 4.9 New relationship: .1 Details of cohabitation (date, whose residence, discussions of mar- riage). .2 If not cohabiting, details of any plans to live together (timing, whose residence, discussions of marriage). .3 Details of children’s relationship with new partner. 4.10 Obtain contact information and details regarding any witnesses. 4.11 Obtain financial details. Consider having client fill out a financial state- ment in Form F8 under the new Rules (formerly Form 89) after the interview. .1 Income: (a) Client: (i) Amount and sources of income. (ii) Jobs held and income earned throughout relationship. (iii) Periods of unemployment and reasons. D-1-10 6/10 LAW SOCIETY OF BRITISH COLUMBIA FAMILY PRACTICE PRACTICE CHECKLISTS MANUAL INTERVIEW LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE (iv) Any foreseeable change in job or income. (v) Whether client worked as a homemaker and, if so, whether this was by agreement with spouse. (vi) Ability to earn income, including education, skills, qualifica- tions, health. (vii) Future intentions regarding employment. (viii) If currently in school or training, what this will cost, and em- ployment goals and probable earnings. (ix) Special needs of children (e.g., age, disability) that affect client’s ability to work outside the home. (x) General lifestyle and spending habits of client before and after separation, such as: characteristics of residence, number of cars, recreational activities, social activities, restaurants attended, clothing, holidays, and the functions performed by client during cohabitation. (b) Client’s spouse: (i) Amount and sources of income. (ii) Jobs held and income earned throughout relationship. (iii) Periods of unemployment and reasons. (iv) Any foreseeable change in job or income. (v) Whether client’s spouse worked as a homemaker and, if so, whether this was by agreement with spouse. (vi) Ability to earn income, including education, skills, qualifica- tions, health. (vii) Future intentions regarding employment. (viii) If currently in school or training, what this will cost, and em- ployment goals and probable earnings. (ix) Special needs of children (e.g., age, disability) that affect client’s spouse’s ability to work outside the home. (x) General lifestyle and spending habits of client’s spouse before and after separation, such as: characteristics of residence, num- ber of cars, recreational activities, social activities, restaurants attended, clothing, holidays, and the functions performed by client’s spouse during cohabitation. .2 Where child support is an issue: expenses, including any special or extraordinary expenses (e.g., health, education, extra-curricular activi- ties). .3 Where spousal support is an issue: projected expenses needed to pro- vide for self and to provide supervision of children. Collect information regarding employment and education history of the spouse requiring support. .4 Real property owned by either spouse at or since beginning of relation- ship: (a) Address and legal description. (b) Registered owner. (c) Acquisition: date, purchase price, source of original funds, mort- gage amount, mortgage lender. 6/10 D-1-11 FAMILY PRACTICE LAW SOCIETY OF BRITISH COLUMBIA INTERVIEW PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE (d) If acquired before beginning of relationship: market value at date of beginning of relationship, whether an appraisal available, amount of mortgage at beginning of relationship. (e) If mortgage was paid off during relationship: when, what funds were used, whether both spouses contributed, amount paid. (f) If sold during relationship: when, selling price, net sale proceeds, use of proceeds. (g) If re-mortgaged during relationship: when, with whom, who signed mortgage, terms of mortgage, what funds have been used to make payments, what was done with mortgage proceeds. (h) Current state of mortgage, if it was not paid off during relationship, or, if property was re-mortgaged: balance owing, defaults, late payments. (i) If still owned: present fair market value, whether appraisal or real estate evaluation available, current details of possession and use. (j) Contributions of each spouse to maintenance and improvement of property during relationship. (k) If owned by other spouse: what property was being used for at beginning of relationship, whether client contributed to property before relationship (e.g., cash, co-signing loan or mortgage, busi- ness acumen, physical labour, homemaker), whether client contributed to property after relationship, whether property was used during relationship for benefit of family, whether spouses considered it to be for benefit of family, what contribution spouse expected of client regarding the property. .5 Mobile home(s) owned by either spouse at or since beginning of rela- tionship. Collect the same information as required for real property. .6 Personal property owned by either spouse at or since beginning of relationship. Collect information on all types, including: cash, bank accounts, term deposits, bonds, stocks/options/commodities/debentures, mortgages/agreements for sale, motor vehicles, recreational vehicles, farm or other machi- nery/equipment, boats, aircraft, art objects, furnishings and household goods, jewellery, club memberships, bullion/coins, RRSPs, RRIFs, RESPs, pensions, life insurance, medical, dental, and disability insur- ance, promissory notes, judgments. Obtain the information that is relevant for each item, such as: (a) Description. (b) Owner. (c) Acquisition: date, price/value, who acquired the property, source of funds, financing. (d) History of ownership: in whose name, who has made payments, amount of payments, amount owing, use, details of any sale, use of sale proceeds. (e) Value at date of separation and current value, any appraisals, maturity dates and values, whether RRSPs, insurance policies, etc. can be cashed in at present time. D-1-12 6/10 LAW SOCIETY OF BRITISH COLUMBIA FAMILY PRACTICE PRACTICE CHECKLISTS MANUAL INTERVIEW LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE (f) For bank or credit union accounts: all financial institutions used by client or spouse; account locations, types, numbers, and balances. Determine whether account is joint or sole. (g) For stocks, etc.: number of shares, class of stock, encumbrances, restrictions on transfer. (h) For insurance policies: beneficiary, whether policy has been bor- rowed against and details of this, cash surrender value, if any. (i) For promissory notes: from whom, amount owing, interest rate, payments, due date. (j) For outstanding judgments: against whom, date, amount, whether collectable. (k) For pensions: beneficiary, plan name, contributions, owner, details of plan. Have the client execute a Form 1 under the Division of Pensions Regulation to allow you to communicate with the pension plan administrator and to notify the plan of the client’s interest in the pension. .7 Businesses, partnerships, and joint ventures owned by either spouse at or since beginning of relationship: (a) Whether incorporated or unincorporated. (b) Name and address of business and of principals or participants. (c) If incorporated: registered and records offices, directors, share- holders. (d) Type of business. (e) Nature of interest: number and ownership of shares. (f) Acquisition: date, price/value, who acquired the property, source of funds, financing, how much capital introduced into the business. (g) Value: estimated market value and book value at date of acquisi- tion, date of beginning of marriage/marriage-like relationship, date of separation, and current date; whether anyone has tried to pur- chase business in past year and on what terms. (h) If sold: when sold, selling price, net proceeds, use of proceeds. (i) If still owned: liabilities each spouse is responsible for, including co-signed loans and guarantees. .8 Livestock, pets, and related equipment. .9 Real or personal property sold or given away by client or spouse in the past two years: (a) Name and address of trustee, if applicable. (b) Date of disposal. (c) Price: whether an appraisal was done first, fair market value, proceeds, whether transfer was for market value and, if not, why not. (d) Whether spouse approved of transfer. (e) Use of proceeds. .10 Debts and liabilities of client and spouse at beginning of relationship, date of separation, and current date: 6/10 D-1-13 FAMILY PRACTICE LAW SOCIETY OF BRITISH COLUMBIA INTERVIEW PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE (a) Description (e.g., mortgages, agreements for sale, credit cards, bank loans, personal loans, business loans, tax liabilities (including contingent tax liabilities)). (b) When incurred. (c) Why incurred. (d) Whether spouse approved of transfer. (e) What security given. (f) Amount: original amount, interest rate, payment history, present status (including amount outstanding and defaults). .11 Personal guarantees given by client or spouse. .12 With respect to any asset in question, review reasons why assets should be considered family assets: (a) Property in question. (b) Owner. (c) Physical or monetary contribution made to acquisition, preserva- tion, or maintenance. (d) Housekeeping and child-rearing roles. (e) Opportunities for employment or advancement given up to assist in acquisition. .13 Determine whether there is any property owned by one spouse to the exclusion of the other and used primarily for business purposes, where the non-owning spouse did not make a direct or indirect contribution to the acquisition of the property or the operation of the business (FRA, s. 59). .14 Determine whether client or spouse received or is about to receive: (a) An inheritance: who received it, when, how much, what was done with it. (b) A windfall (e.g., lottery winnings, prizes, gift from family): who received it, when, how much, what was done with it. (c) An award for personal injuries, including workers’ compensation benefits: who received it, when, how much, what was done with it. (d) Proceeds of an insurance policy (and if so, whether it was in re- spect of property or related to some other matter): who received it, when, how much, what was done with it. (e) A gift from his or her spouse: who received it, when, market value, what was done with it. (f) A bonus relating to past services (e.g., severance pay). .15 Determine whether there is any reason to suspect that client’s spouse intends to dispose of any assets or remove them from British Columbia. .16 Determine whether client or spouse wants specific items of property. 4.12 Where client wants exclusive occupancy of the family residence or an order restraining the spouse (including common-law spouse) from entering the family residence, gather the following information: .1 Description of dwelling. .2 Location with respect to schools. .3 Reasons for wanting the spouse removed: D-1-14 6/10 LAW SOCIETY OF BRITISH COLUMBIA FAMILY PRACTICE PRACTICE CHECKLISTS MANUAL INTERVIEW LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE (a) Violence. (b) Abuse of alcohol, drugs. (c) Effect of behaviour on the mental or physical health of the client or the children, including, if possible, medical reports. (d) Any criminal charges previously laid against the spouse. (e) Alternate accommodation available to the spouse. (f) Financial impact of moving/selling. 4.13 Where client wants exclusive use of chattels, gather the following informa- tion: .1 Clear description of the chattels. .2 Who used them prior to separation. .3 Reason that client needs them now (e.g., need car for work or to drive the children to school or to recreational activities). .4 Similar chattels available to the spouse. 4.14 Where client wants an order restraining disposition of assets, gather the following information: .1 Clear description of the chattels. .2 Present location of the assets. .3 Ownership of the assets. .4 Previous use of the assets. .5 Actions or statements of the spouse that indicate he or she might dis- pose of the assets. .6 Reasons why the assets are to be considered family assets (see above). 5. COLLECT DOCUMENTS 5.1 Consider fequesting copies of all relevant documentation. If you will be relying on your client’s information regarding income and assets and debts, consider limiting the scope of your retainer. Relevant documents will in- clude documents, such as the following: .1 Original marriage certificate (long form) or certificate of registration of marriage. .2 Photograph of spouse (for service purposes) if a divorce is sought. .3 Income tax returns of client and spouse for past three years (both per- sonal returns and corporate returns if any incorporated businesses are involved), as well as the financial statement for any businesses operated by either party. .4 Financial records, such as: bank or credit union statements, paystubs, credit card statements. .5 Records relating to matrimonial property, such as: land title searches, mortgage statements, loan agreements, loan applications. .6 Records relating to the value of family property, such as appraisals and British Columbia property assessment. 6/10 D-1-15 FAMILY PRACTICE LAW SOCIETY OF BRITISH COLUMBIA INTERVIEW PRACTICE CHECKLISTS MANUAL LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE .7 Records relating to pension plans, insurance policies, RRSPs, RRIFs, RESPs. .8 Marriage, separation, or property distribution agreements, between the spouses and between each spouse and any prior spouses. .9 Related court documents, including court orders, between the spouses and between each spouse and any prior spouses. .10 Certified copy of divorce order if one spouse was previously divorced. .11 Medical and legal reports. D-1-16 6/10 LAW SOCIETY OF BRITISH COLUMBIA FAMILY PRACTICE PRACTICE CHECKLISTS MANUAL INTERVIEW LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary DATE DATE ACTION TO BE CONSIDERED NA L LA DUE DONE .12 Conduct any relevant searches (e.g., in the LTO, Corporate Registry, Vehicle Records Department at ICBC, or Personal Property Registry). 6/10 D-1-17