I’ll get the kids for Christmas!

These past few months have been very difficult and emotionally draining for Jill and the children. For this reason, Jill plans to travel to Nova Scotia this year with the children to spend a few weeks with her family over the holidays.  She knows that Jack will not want to spend the Christmas Holidays without the children.  All Christmas dinners have been held at Jack’s parents, a family tradition that has never been broken since the day she met Jack.   This year however, Jill wants to have Christmas dinner with her family.  She is prepared to let Jack have the children with him on New Year’s day and allow him to keep them in his care until school resumes.  As Christmas is just few weeks away, Jill was advised by her friend to immediately begin emergency court proceedings to obtain an order allowing her to travel with the children to Nova Scotia for Christmas.  She wonders if she should….

Most parents have a very limited understanding of the complexities of the family court process.  In addition, many of them have unrealistic expectations with regard to the delays associated with family court proceedings and the powers conferred upon judges to render decisions when dealing with custody and access matters, especially in the interim stage of a separation (that means, before a full trial is conducted). Here are a few things you should know about a family court proceeding:

• Trial - A family court proceeding can take up to two years (sometimes much longer) before it is ready to proceed to trial.  A trial is when all the witnesses testify in court in front of a judge who ultimately renders a final decision in the case.  
• Interim or emergency hearings - Called “motions” or in some provinces “applications”, these hearings are brought often as a court proceeding begins to obtain temporary decisions on issues that require immediate attention, for instance when you need an order to confirm with whom the children will reside, to obtain child support or to force the sale of the family home.  It can take several weeks and even months (depending on where you live in Canada) to have a motion heard by a judge in family court, unless you can show an extreme emergency.  Spending Christmas with your children does not usually qualify as an emergency.  The evidence used for a motion hearing is presented to the judge by way of written statements (called affidavits) – there are no “live” witnesses.  The judge reads the affidavits before the motion hearing takes place.  Since one party’s version of the story is never the same as the other party’s, the judge is often unable to determine which story is the “true” story.  As a result, the judge is often not in the best position to make an order that truly meets your children’s best interests.
• Alternative options - Courts make lousy parents, and you should always try to explore other ways of resolving disputes about parenting issues.  The following options can be arranged relatively quickly: jointly hire a parenting mediator to help you craft an arrangement that meets both parents’ desires, seek the assistance of an experienced social worker who can sit down with all of the family members (including your older children) and facilitate a discussion around the various options.  If a negotiated resolution is not possible, enter into a private arbitration with an experienced and qualified family lawyer who will take the time to hear both parents’ views and concerns and then make a decision on the disputed issue.  These alternatives not only have the benefit of being more expeditious, they are also often much, much cheaper than going to court.

After the Separation - The Need to Plan the Christmas Holidays!

The Christmas holidays are just around the corner and Jack would really like to work out the holiday schedule and travel plans with Jill.   Jack’s mother is hoping that she will be able to give her annual Christmas dinner and she is pressing Jack to get an answer from Jill as soon as possible.  Jill is still very angry at Jack and unreasonable when it comes to making decisions with respect to the children.  Jack fears that she will not let him have the children for  his family’s traditional Christmas dinner, a festivity that the children enjoy very much as they get to play with all their cousins. Jack is anxious and feels that, at least for this year, the existing family traditions should be maintained.   

If, like many other separated families, you must face the prospect of sharing the children with your ex-spouse this year, chances are you will be spending either Christmas or New Year or some very important event without your children.  Planning is the key to help you cope with being either home alone during some of these times and/or without your children.  Here are a few tips you may want to consider to make this holiday season as merry as possible, in the circumstances:

• Talk to your children – Mark the calendar so that they understand the schedule that was agreed upon with your ex-spouse.  You may tell them how much they will be missed when they are with the other parent, however, reassure them that you also have fun plans.  While it is important to be honest with your children about how you feel, they are not responsible for your happiness (or unhappiness).
• Make plans with your children – It is not important what you do or when you do it, as long as you plan to celebrate the holidays in YOUR own special way.  Start a new family tradition that the children will cherish for years.  Children remember true joy, comfort and laughter, not specific days of the week.  Ask for their advice as children always have great ideas.
• Touch base – When your children are with the other parent, arrange to have some kind of contact with them.  A quick phone call or a text message on Christmas day can go a long way.   A contact, no matter how brief, will help the children cope and help ease your own feelings of loneliness.  Remember, you will soon be reunited again.
• Most importantly, make plans for yourself – It does not have to be earth shattering but make sure to plan something out with family and friends during the children’s absence.  Also plan for some time alone to rejuvenate.  Your heart and soul might be aching with pain for not being with your children, but a good laughter might be the cure you need.  Cook a special meal, go to a movie or to a fine restaurant, read a good book, rent a movie, get a massage or a beauty treatment, finish a home project, stay in bed as long as your heart desires, go away for a few days or give some time to a local charity.  What truly matters is that you take time to make plans for yourself!

At 12-year old, my child is old enough to choose where he wants to live!

Jack is a bit annoyed with Jill.  She now believes that she should have sole custody of the children although she was always the first one to tell family and friends that her husband was the best father and that the children loved him very much.  Jack knows that he is able to care for the children in his own way.  His parenting skills are different from Jill’s and while the children need their mother very much, they also need him too.  The children are not little kids now, they are 10 (Adam) and 3 (Eva).  Adam has expressed his wish to spend his time equally with both parents.   Jack was advised by some of his friends (who went through a separation not too long ago) that at 12 years old, Adam can chose where he wants to live.  While Eva is too young to make that decision for herself,  Jack was told  that courts rarely separate sisters and brothers and since Adam is clear about his preference,  Jack feels confident that the custody issue will go his way. 

There is a very wide-spread myth that once children are 12 years old, they can decide for themselves with which parent they will live.  Let’s make one thing very clear: there is NO such principle in Canadian law.  This is just another example of why you need to make sure that you obtain sound and reliable information about your separation and divorce issues.   What the law really says is that the wishes and preferences of children is one of many factors that need to be considered by a court when making a decision about the care and custody of children.  Of course, the older the children are, the more weight their wishes and preferences will be given by the court.  As you can appreciate, the older the children,   the more outspoken they become about their wishes and preferences.   Also, older children often go where their feet go and it will be more and more difficult to impose upon them living arrangements that they disagree with.

When older children are caught up in custody disputes, a lawyer can (and will very often) be appointed by the court to represent the children to ensure that their wishes and preferences are heard and shared with the judge.  However, when rendering a decision, courts will consider several factors and the children’s wishes and preferences will only be one of them, although it will take more precedence as the children’s age and level of maturity increase.   Courts want to ascertain that the children’s wishes and preferences are based on valid reasons such as they feel closer to one parent or because they have a well-established routine with one parent and not with the other.   However, if the children’s reasons are they they are free to do as they please while in the care of the “preferred” parent (who may often be the less disciplinary parent), including missing school and adopting delinquent behaviours, then courts will not give much weight to their wishes and preferences no matter how old they might be.

I want sole custody of my children!

Jill has made up her mind.  She wants sole custody of the children!  She is moving into a new home and the kids are coming with her, whether Jack likes it or not. Although, Jill knows that it is important for the children to continue to have a healthy relationship with their father and to spend time with him, something she is more than prepared to accommodate, she feels that it is in the children’s best interest to live with her permanently.  After all, she has always been primarily responsible for all of their needs, organizing and attending doctors’ appointments, parent-teacher meetings, and activities, getting them ready for school, doing their homework, and so on.  Jack seems to think that they would have joint custody of the children but Jill disagrees.  She will not spend a whole week without her children because they are still too young, and a week on/week off schedule will be too disruptive for their routine. After all, it’s Jack who wanted to end this marriage, not her, and she won’t live without her kids!

When discussing a parenting plan with an ex-spouse, many people misuse some of the legal terminology which often leads to disputes where there is really none. That is because the term “custody” is used to express two completely different things.   The first one refers to the decision-making process and the other refers to the time-sharing arrangements. However, most people understand the concept of “joint custody” to mean that the children spend an equal amount of time with each parent, which is not necessarily so.  In fact, the term “custody”, legally speaking, refers to who will be responsible to make the day-to-day decisions about the children such as:  Where will the children live?  In what school are they going to go?  What religion will they practice, if any?  What activities will they be engaged in?  Having joint custody of the children means that both parents are making those decisions together.   Having sole custody of the children means that only one parent can make those decisions, without having to consult the other parent.  Our courts now also recognize the concepts of split custody and parallel parenting, the former referring to a situation where each parent has sole custody of one or more children and the later referring to each parent having exclusive decision-making authority on one or more aspects of the children’s upbringing (for instance the father makes all decisions about all the children on educational matters and the mother makes all of the decisions about all of the children on health and religious matters). 

The term “access” refers to how the children’s time will be divided between the parents. The expression shared custody is often used by parents and lawyers (although it is not a term used in the legislation) to describe a situation where the children spend an equal amount of time with each of their parents.  Both parents normally want to continue to be equally involved in the lives of their children and therefore agreeing on these difficult topics is not always easy. To avoid unnecessary disputes, it is important for you and your former spouse to understand and express clearly what you have in mind when using these terms.  I have seen parents taking strict positions against a request for “joint custody” not understanding that the other parent did not really want to have the children in his or her care half the time, but only wanted to continue to be involved in the decision-making aspects of the children’s upbringing.

Can I stay financially afloat on my own?

Jill has not been sleeping well these past few weeks.   She is extremely worried about her financial future and is wondering if she can stay financially afloat on her own. She has been working part-time since the birth of the children and she may now need to go back to work full-time. Jill was somewhat aware of the household finances but Jack was the financial planner and decision maker. Jill can barely function at work or at home and the thought of having to become financially knowledgeable overnight is overwhelming. She is angry at Jack for putting her and the children in this financial mess.

When facing divorce, people don’t always get what they think they deserve financially.  Some make hasty decisions because they are anxious to get the divorce over with.  Some hope to reconcile and for that reason don’t ask any questions to avoid alienating their spouse.  Others are angry and let their emotions in the way of a fair and reasonable settlement, thus increasing legal fees unnecessarily.  We have all heard horror stories about how divorce can be devastating financially to one or both parties.  However, divorce does not have to lead to bankruptcy or a negative bank balance. Consulting professionals such as financial divorce specialists, mortgage specialists, accountants  and appraisers (to name only a few) will help you assess the real value of your assets, understand any tax implications involved in any settlement and plan for your financial future.  Educating yourself will be your guide to financial freedom.  Here are a few ideas for you to reflect on:

1. Keep your expectations about money realistic.  Expect that money will be tight – for a little while – and that you may not be able to maintain your present lifestyle even if you are fairly wealthy.  It will be frustrating at times to think of what you had and what you have “lost”.   Think of your separation as a temporary financial set-back.  Like the fluctuations of the stock market, with a long-term financial plan, some patience and a bit of luck, lost money can always be re-earned.

2. Equitable does not mean equal.  A long drawn out separation battle definitely drains emotions and finances.  Be willing to negotiate as you have a limited supply of time, money and energy.   It is not about getting all you can get.  Understanding that equitable does not mean equal may help you strive to achieve a win-win situation and may save you time, money and energy in the long run.  

3. Think long term.  Keeping a handle on the financial implication of any decisions you make can avoid many long term pitfalls.  Deciding whether to keep the convertible BMW you always dreamed of instead of a mutual fund may mean that you will be eating cat food in a few years.  If you don’t know the answer or where to start, consult a financial expert who can help you see what today’s financial decisions will mean in ten years.  

4. Get involved in planning your financial future. The rule of thumb is to keep it simple and get involved.  Make a budget and a list of your debts and assets.  You can have a short-term (before final settlement) plan and a long-term (after settlement) plan.  Your separation will take some time before it gets resolved.   Therefore, take it one step at a time.

Why is the date of separation important?

Jill has made it quite clear that she did not want to continue to live with Jack in their family home and as a result, Jack has been looking at his options.  Jack knows that Jill has spoken to the bank and was pre-approved to purchase a new home, a move he clearly disagrees with. Jack is also getting extremely concerned about various withdrawals made by Jill against their joint line of credit without his knowledge or consent ($1,500 one week ago paid by cheque to “Albert & Albert Law”, $2,000 which was transferred  to her personal bank account and another $500 the destination of which he does not know).  Jack knows that these withdrawals will not bankrupt the family, but he sure disagrees with having to pay one half of Jill’s lawyer’s fees!

Are you having similar concerns?  If so, then it is essential for you to understand the concept of the “date of separation” and its importance in your divorce or separation.  In all Canadian provinces and territories, spouses have the right to ask that their family property be divided equally (or fairly, depending on the province or territory) between them.  Most provinces and territories confine this right to married people ONLY. As a result, if you are living in a common law relationship in one of those provinces, the rules concerning the division of your property will be different. What is important to remember is that in most Canadian jurisdictions (including in the province of Ontario), when you are married it is not the property itself that gets divided (in species), but rather its value.  What value do you use? In most provinces (including in the province of Ontario), the property subject to division is valued as of the date of the parties’ separation.  This means that in principle, whatever happens after the date of separation is irrelevant to determine each party’s entitlement to a share of the parties’ family property. 

Let us make it more simple. In the case of Jack and Jill, if Jack was to win one million dollars one day after the date of separation, he would not have to share it with Jill.  Similarly, if one week after the separation Jill was to take a $50,000 personal loan to purchase a brand new Mercedes, Jack would not be entitled to share the value of the Mercedes, but nor would he be liable for the $50,000 debt.  It is very important to keep in mind, however, that while Jack does not have to assume one half of Jill’s $50,000 debt, if Jill was to use the parties’ joint line of credit to purchase the car, Jack may become liable towards the bank for the entire amount.  When negotiating their settlement, Jill will have to account to Jack and reimburse him for any liability (i.e. debts and bank withdrawls) contracted by her after the date of the parties’ separation. 

How do we determine the date of separation?  The date of a couple’s separation is not the day the parties signed a separation agreement, nor the day that their divorce is granted.  The date of separation, in very simple terms, is the day that one of the spouses communicates to the other his or her intention to separate in a way that makes it clear that there is no possibility of reconciliation. For most couples, this date will be quite clear (in most cases one of the spouses moves out of the home that very day, or shortly thereafter), but for some other couples it will not be that clear and it will be a question of evidence if the spouses later cannot agree on a specific date.  Also remember that it is possible (and in fact very common) to be considered separated even if you continue to live under the same roof.

The next step... our children

Jack is relieved that he finally told Jill the truth about his decision to separate, which had been weighting on him for quite some time.  He did not expect Jill’s reaction when he dropped the bombshell.  When Jack got married, he never planned to get divorced but now he realizes that they had problems in their relationship which were more obvious to others than to them.  He is hurting too and he is afraid of all the changes that lie ahead. His biggest fear is how the children will react to this, but he feels confident that the children will adapt with time.  Even if he and Jill are separated, Jack plans to continue to live with her in the home for a while until the children “adapt” to the idea of living into two separate homes.  Jack understood from his lawyer that there is no need to make rash decisions.  Jack believes that once Jill comes to terms with the separation, they will make this transition work for the sake of the children.  After all, they have always made a great team when it came to the children.

Ex-spouses living together after separation are much more common than you think. Some want to minimize the disruption in the children’s routine, others cannot afford to financially separate until some event takes place (like the sale of the home or the settlement of support issues).  When both parents continue to live in the same home, there is no physical separation and, in the eyes of the children, the separation is not truly happening. Whether you remain in the same home for a time, or whether the physical separation takes place right away, here are a few tips that you might want to consider before breaking the news to your children:

• When they are told about their parents’ separation, children often go “into shock” and in complete denial themselves. The children often maintain the dream that their parents will get back together.    Explaining the separation to your children is never easy. Sometimes you may not know what to say as you may be having a hard time yourself accepting the separation and all its realities. Tell the truth, as much as you can, and never promise your children something you cannot deliver such as “you will see daddy as much as you want”. 
• At the news of the separation, some children believe that the breakup is their fault.  Parents need to help their children understand that the separation is a problem that exists between Mom and Dad and that their actions or behaviour had nothing to do with the separation.  Your children know more than you think.  They have been feeling the tension and they have heard your conversations even if they were held behind closed doors!  Keep your children away from conflict and avoid speaking negatively about the other parent. 
• Children want to love both parents and the separation may create a sense of abandonment.  Children often feel like they have lost one parent and that they might lose the other one.  As a result, they tend to cling to their parents.  Reassure your children that you are not leaving them but only the relationship with their mother or father.  Show them lots of love, patience and understanding as they are filled with fears and anxieties about their own future.

Jill – I’m keeping the house!

After all of her attempts to convince Jack to give their 15-year marriage a chance, Jill realized that her marriage is really over.  Jill is hurt and angry.  She feels betrayed and Jack’s presence in the home is unbearable.  Jill is walking on eggshells and no one is talking.  To make it worst, Jack still pretends that everything is fine.  The atmosphere in the home is so tense that you could cut it with a knife.  Jill cannot take this anymore.  She barely sleeps at night and she feels sick.  Jack’s suggestion to just continue living together in the same home “for the sake of the kids” while they sort out the legal issues around their separation is complete nonsense.   Jill and the children cannot continue to live in limbo.  The children feel the tension in the home and they are starting to ask questions.  Jill is angry and wants Jack out of the home – the sooner the better.
 

Agreeing on housing arrangements is normally the first thing that ex-partners will need to sort out following the announcement of the separation.  What do we do with the home?  Who goes and who stays?  Do the children remain in the family home or do they move into the departing parents’ new home?   Many issues need to be considered when making new living arrangements.   Here are a few pointers to help you consider your options:

• Issues surrounding the care of the children need to be sorted out.  The best way to handle this is to make a temporary parenting plan for your children.  Abandoning the home with the kids and without notice to the other parent is NOT the way to proceed, unless you are faced with serious
  safety issues (such as domestic violence, in which case you should seek guidance before leaving with the children).  Agreeing to a temporary plan of care (even one that you may not feel is the best) will ensure that both parents’ rights towards their children are protected while they negotiate a final – and perhaps more appropriate – plan for their children. 
• It is not uncommon for a family to have a tough time meeting their monthly expenses on their combined income.   The prospect of dividing this family income into two different households (thus, doubling the parties’ combined housing expenses) may not be an option.   If finances are an issue, you may have to negotiate temporary financial arrangements with your former spouse to meet monthly expenses, even if only for a short period of time, for example while the home is being sold or refinanced with a view to be transferred to the other spouse.  You may consider obtaining a joint line of credit to pay the extra monthly expenses with the understanding that when the home is sold or transferred, the line of credit will be paid off.  
• If temporary financial arrangements cannot be made, you may have to consider whether your family members or a friend can provide you with temporary housing.   Perhaps the parents can rotate in and out of the home to care for the children (each of them having exclusive possession of the home while they care for the children) until things are settled.  Just remember that there are various alternatives that you may not think about, but that an experienced family lawyer, financial divorce specialist or financial advisor can help you craft. 
• If financial considerations are not an issue, and the parties cannot agree on temporary living arrangements, the court can make an order giving one of the parties (with or without children) the exclusive use / possession of the home for a certain period of time (normally until the sale of the home or until some event occurs).  However, seeking the assistance of the court should be your last option.  In fact, this costly option should be used only in case of an emergency or if all other attempts to negotiate an acceptable agreement (temporary or final) have failed.

Our marriage is over? This cannot be happening to me!

Jill is in complete shock. She never saw this coming.  Less than a month ago they went on a trip together and everything was great.    Jill had noticed that Jack was acting strangely for the past few months, that he was growing more distant, but never suspected that he wanted out.  Yes, they had their arguments, and yes, life was not always perfect, but they were still a happy family or so she thought.  When Jack told her he wanted to separate, Jill stormed out of the house and went to see her friend Sue.  She could not breathe anymore, she did not sleep that night and she could not stop crying.  In the morning, Jill came back to the house to get the children ready for school.  She put on a brave face for the children and pretended everything was fine while Jack kept on walking through the house as if nothing had happened.  Jill thought that maybe it was just a bad dream.  Maybe Jack was just upset and did not really mean it.  It would not be the first time.  She knew he was stressed out with work and had been spending lots of time at the office lately.  Jill had never felt such emotional pain and her mind was racing with fear.  Jack was really upset and seemed to mean it.  Could this be really happening?  What will happen to the children, the house, to their family relationships?  Their friends?  What will people say?   Jill felt like a complete failure and started doubting herself:  “What if I had not started the argument last night?  What if I had listened to him more?” In complete denial, Jill started to think that they could still work this out, it could not be the end of their marriage.  All she had to do was to convince Jack to attend marriage counselling.  Surely, he would realize that he was making the biggest mistake of his life! 

If, like Jill, your spouse just announced that he or she wants a separation, you are probably going through an emotional roller-coaster.  This is a very tough time for you.  Don’t do it blindly, and don’t do it alone. Here are a few tips to consider:

• Get support: You cannot go through this alone.  Call your best friend, a family member or someone that you trust.  Talk about it.  Let it out.  You have nothing to be ashamed of.
• Take time off work: You cannot function in this state of mind.  If you can, take a few days off.  Most employers will understand if you explain the situation to them.  
• Take care of yourself: Taking care of yourself is hard to do when your world is crumbling down.  But during the next few months, you will need to do just that because no one else will do it for you.  For some people, it can be as simple as taking a few minutes to take a hot bath each night, going for a massage, or asking your parents or friends to babysit the children one evening per week to give you some alone time.   Don’t hesitate to ask for help, now is the time.
• Get reliable information: Maybe you will not separate, but if it does happen, at least you will know what you are dealing with. You are possibly consumed with fears at this time.  Finding out about your rights and obligations can alleviate some of these fears.  Participate in one of our teleconferences, listen to one that is offered in replay on the subject that concerns you (children, support, family property), call our helpline, attend our Divorce Straight Talk seminars or spend an hour with a good family lawyer to get the basic information that you need.  

Do I leave or do I stay?

Jack had made his decision.  Unbeknownst to Jill, he had been through months of personal counselling to figure out whether or not his marriage was over.  It was now crystal clear to him that their long relationship (they started going out in University) was at an end.  After fifteen years of marriage, he was utterly unhappy and he felt that he and his wife had absolutely nothing in common anymore, except their two beautiful children Adam (age 10) and Eva (age 3), whom they both loved dearly.  After another endless evening of fighting over petty issues, Jack made an impulsive decision and announced to Jill that he wanted out.  He thought that she felt the same way as he did (she’s been so distant lately), but let’s just say that the announcement did not go as planned.  Jill stormed out of the home without saying where she was going.  She came back this morning before the children woke up, and has not spoken to him since.  Jack has tried to speak to her this morning after the children were gone to school and daycare.  He told her that he did not want to argue anymore, he just wanted a simple separation.  He was not leaving the home until both of them calmed down and figured out what would happen next.

Before Jack made his decision to leave, he consulted a family lawyer to find out what his rights and obligations were.  Jack wanted to make sure that his rights towards the children were protected, that he was not putting himself or the children at risk financially, and that he would not take any steps that might increase the conflict between him and Jill. His lawyer gave him the following advice:

•  Make sure that your marriage is over.  If in doubt, try marriage counselling.  It is readily available and relatively inexpensive, and you want to make sure you don’t regret your decision later;
• Don’t make hasty decisions.  Take the time to think this through with your partner.  Now is NOT the time to:
• Cancel your life insurance policies or change the beneficiaries on your health plan
• Sell the home or move out of the home (at least not before an agreement, even temporary, has been reached with respect to their care)
• Take out all of the money in the joint bank account, close all your bank accounts, or cancel your spouse’s credit cards.  This is the best way to insure years of litigation
• Create more debts (i.e. load your credit cards or buy yourself a new car with the joint line of credit)
• Remove all of the furniture from the home
• Protect yourself.  While you do not need to “rock the boat” the day after you announced your intention to separate, make sure that you are well informed and keep your eyes open.  Among other things:
• Pay attention to joint credit and debts.   If you see unusual or large withdrawals on the line credit, react!
• Put important belongings (family heirlooms, jewellery, insurance policies) in a safe place
• Make photocopies of important documents (income tax returns, home purchase documents, insurance policies, bank statements, passports)

Separation is usually a long and painful journey, take the time you need to think it through carefully.