Category: Relationships Published on Friday, 15 June 2012 09:57 Written by Viresh Fernando
This is to introduce people having marital problems to some of the legal issues that they need to think about. This is only an overview and I urge everyone to get legal advice from a lawyer who regularly practices family law. This is not a “do it yourself” guide or a substitute for proper legal advice. Family law is very complex. It impacts on all areas of one’s life.
Spouse – husband or wife
Party – husband or wife
Parties – husband and wife
Court – the judge
Registry – the court office where documents need to be filed
Registrar – the person in charge of the court registry as well as the person in the court house who helps the judge
Filed – Someone needs to physically attend at the court office and physically attach the documents to a ring binder after the documents were served.
Served – Making sure the documents are properly sent to your spouse or her/his lawyer
Counsel – your spouse’s lawyer or your lawyer.
Your Honour or Honourable Court – the way in which the judge is addressed
Motion – The way you ask the Court to order that something be done such as that you be awarded child support, spousal support, custody or access to get an order for the sale of the matrimonial home
Child support – the amount of money that the non-custodial parent pays the custodial parent for the care of the children
Spousal support – the amount of money that the spouse who earns more money MAY have to pay the spouse who earns less money
Matrimonial home – where the family lives/lived
Custodial parent – the parent with whom the children live for at least 60% of the time
Order – the decision of the judge
Case conference – an informal confidential meeting with a judge to try to try to outline issues in dispute
Settlement conference – a more formal yet still confidential meeting with a judge to try to settle issues
Trial – In the approximately 3% of the cases in which a case conference, settlement conference and motions have not been successful in settling issues between the parties then the parties will have to go to a trial which is very stressful and very expensive.
Unless there is emotional or physical abuse involved take your time about deciding to try to stay together or separate. Think creatively about all of your options. Remember that in general family and friends do take sides. Let them provide you emotional support. At the same time figure out which friends or family members can give you non-judgmental and objective advice. Discuss with them your feeling and thoughts and ask them to give you frank advice. DO NOT GET ANGRY WITH THEM IF THEY TELL YOU SOMETHING YOU DON’T WANT TO HEAR! Many employers offer Employee Assistance Programs (EAP) which provide free access to 10 to 12 counseling sessions and to about a 30 minute free consultation with a lawyer.
Best Interests of the Children
Keep your children’s interests always at heart. Try to act in a way that minimizes the impact of the conflict between the parents on the kids. When spouses split-up please note that judges are increasingly awarding joint custody and shared/equal residence of the children. Therefore you and your spouse have to continue to cooperate in regard to the children. Even after the children finish university the parents may need to deal with each other at things like the children’s marriages, the birth of grand children, etc.
The parent who makes the major decisions about the children is known as the custodial parent. Generally speaking (but not always) this is parent that the children live with. Courts are increasingly awarding joint custody – stating that both parents should be jointly deciding on what is best for the children. Of course, if the parents are at each other’s throat all the time joint custody is less or not at all feasible. The alternative to joint custody is sole-custody. In a sole-custody situation the non-custodial parent is known as the access parent.
Generally if a parent is awarded sole custody the primary residence of the children will be with that parent. But that does not have to be always the case. There can be sole-custody and shared residence. Shared residence can involve a whole series of permutations and combinations such as one week with one parent and the next week with the other parent, etc.
Shared custody too can mean primary residence with one parent or shared residence with both parents depending on what is best for the children
If the children primarily live with one parent then the other parent who is called the access parent will have access to the children. A typical access schedule will be every other weekend from Friday after school to Sunday 9 pm and alternate Wednesdays from after school to 9 pm. These arrangements can be made to accommodate religious, social, cultural issues and employment commitments. They also tend to depend on the age of the children.
Holidays and vacation periods are generally split evenly between each parent.
First thing to keep in mind is that the right to child support belongs to the child. So the parents cannot make a deal with each other not to pay/accept child support for example in exchange for not making a property/equalization claim.
Child support is payable to the custodial parent by the access parent assuming that the children live with the custodial parent more than 60 per cent of the time.
The actual amount of child support is determined according to the Child Support Guidelines which are available on the internet.
In addition to child support both the parents are responsible for “special expenses” such as hockey lessons, ballet classes, summer camp, etc. The costs of these expenses are shared between the parents in the ratio of their individual income to the total combined income.
The spouse who earns more may have to pay spousal support to the spouse who earns less. This is an extremely complicated calculation that lawyers and judges use computer software to do. Income of both spouses, number of years of marriage, age, the amount of child support that should be paid, and other factors.
Equalization – Sharing of Assets and Liabilities
When there is marriage breakdown (except in the case of minor and highly specialized exceptions) each spouse is entitled to one half of the combined assets less the combined liabilities that they own. It does not matter in whose name these assets or liabilities are. Typical assets are houses, condos, cars, RRSP’s pension plans, bank accounts, etc. Typical liabilities are home mortgages, lines of credits, credit card debts, loans, etc.
The value of these assets and liabilities are generally calculated as of the date of separation (also known as the valuation date) except the value of the matrimonial home and debts associated with the matrimonial home.
Date of Separation/Valuation Date
Determining the date of separation (“DOS”) is important as it impacts on equalization as discussed previously and also may impact on child and spousal support.
DOS depends on the particular circumstances of each separation. It could be the date one of the spouses moved from the shared bedroom to another bedroom or the basement, the date one spouse found out that the other spouse is having an affair, the date one spouse moved out of the matrimonial home, or the date your friends or family got to know that the marriage had irretrievably broken down.
The date of separation can change if the spouses tried to reconcile after the initial break-up and started to behave as a couple and did so for over 90 days.
Assuming there is no power imbalance the best thing is for the spouses to decide on everything between themselves keeping in mind what has been stated previously. On issues they can’t agree they could seek the advice of an independent person (in my opinion it is almost impossible for a friend or family member to be independent). There are professional mediators who are very effective. I advise people to keep away from faith based mediators/counselors because of the inherent prejudices/biases of many of these people.
When the spouses have decided on how to resolve their issues they should put it all into an agreement. I strongly recommend that this agreement be written-up (“drafted”) by a lawyer. That lawyer can act as n advisor to one of the spouses and a second lawyer will have to give independent advice to the other spouse after making sure the other spouse fully understands what the agreement is all about.
Consult Many Lawyers and Retain the one that fits YOU the best
It is critical that both spouses have good lawyers. Do not go to the cheapest lawyer. Do not go to a lawyer because she/he is from your community. Ask your friends, co-workers, and family for names of lawyers. Most lawyers will give you a 30 minute free consultation. Do not feel pressured to choose (“retain”) the first or second lawyer you meet. Meet as many lawyers as you can and see which lawyer’s background, approach, knowledge, hourly rate, age, etc., “fits” you best. Make sure you can openly communicate with her or him. A good lawyer will put everything down in writing such as what they can and cannot do for you, what your rights and obligations are, how much they will charge you/their hourly rate, etc. This letter is called a “retainer letter”.
Don’t hesitate to tell the lawyer exactly what you want. A good lawyer always acts according to your “instructions” to her/him within certain ethical and regulatory boundaries.
Call the lawyer if a matter is urgent but it is best to communicate by email as then there is a written record and much less room for misunderstanding.
Expect the lawyer to tell you that she/he wants a “retainer”. A retainer is a deposit which in a family matter ranges from $3,000 to $5,000. The lawyer puts this money into his “trust account” and will only use the funds to pay for expenses related to your case or to pay for his own fees after she/he has sent you a bill. If you have any question about the lawyer’s bills please communicate those concerns to her or him as soon as you can. The lawyer will welcome your candour.
Keep in mind that you are in a very stressful period of your life. It is natural to feel confused lonely, depressed, a failure, friendless, abandoned, etc. Don’t keep these feeling bottled-up. Talk about them with your counselor or friends but not with your lawyer. Your lawyer is not your counselor or friend. She/he is an objective advisor on legal matters.
Please remember even if the clouds are grey tomorrow, the sun will rise the day after or the day after that. Let me close by referring to a 1980’s upbeat hit song by the late singer named Gloria Gaynor titled “I Will Survive”. We all do.
By Viresh Fernando, CA, Barrister & Solicitor
416 977 9846