Family Law is not a “one size fits all”

Jack is leaving with peace of mind for a one week vacation with the children during the school March Break.  He is feeling much better now that he has spent an hour with a family lawyer he just retained to represent him in the context of his separation from Jill.  Speaking with friends, family members and other well-intentioned – but misinformed – people had left him completely anxious, discouraged and convinced that he would lose it all to Jill unless he hired a “big gun” lawyer, took a “go-for-the-throat” stance in his separation process and spent half of his retirement savings in legal proceedings.   The lawyer he retained was reassuring, clearly explained to him his rights – yes, men and women have equal rights – and obligations and, most importantly, explained to him that it was not necessary to create a legal war to arrive at a fair and equitable settlement, even if he and Jill did not see eye-to-eye on many things.

On top of all of that, Jack learned that when you are going through a separation, you need to be very careful about who you listen to.  During this one-hour informational meeting, Jack learned that he, just like many of his supporters, had many misconceptions about family law, separation and divorce.  Among other things, Jack learned that he was WRONG to believe that: 

1. Couples living in common-law relationships had the same rights and obligations than married couples;

2. The laws about separation and divorce are the same throughout Canada;

3.  A spouse’s extra-marital affairs and/or bad behaviour could result in a less favourable financial settlement for that spouse;

4.  If Jill remarried, his spousal support obligations would automatically stop;

5.  Having joint custody of the children would mean that neither he or Jill would have to pay child support to the other;

6.  “Joint custody” meant that the children spent one week with one parent and one week with the other;

7. Even if he and Jill had signed a marriage contract (something he had thought about asking Jill to sign when they got married), the result would be the same (i.e. that a marriage contract not worth the paper it is written on, as they are not recognized by courts when there is a separation);

8.  If Jill refuses to let him see the children as he wants, he has the right to stop paying child support;

9.  When his children are twelve years old, they can choose where they want to live;

10.  If push comes to shove, he could just take a lower-paying job and would not have to pay spousal support.

There is lot to be said about family law issues, and many people have an incredible amount of misconceptions about them. That’s why it is very important to be careful about who you listen to when you go through a separation as what applied to them may not apply to you.  Just remember that family law is not a “one size fits all” and getting clear and reliable information about YOUR family matter can avoid costly  battles as well as future headaches and heartaches. 

March Break Fun Without Me!

Sitting at her window, Jill is looking at the snowflakes falling slowly in her backyard.  With sadness, she is reminiscing on all the fun in the sun her family used to have during the March school break. Unfortunately, the end of her marriage also brought with it the end of the “family’s” fun in the sun vacation.  This year, Jack is leaving alone with the children on a boat cruise in the Caribbean while Jill stays home shovelling her laneway!

Most parents are exhausted as they try to keep up with their work, the children’s activities, their homework and the daily family routines.  One would think that a single parent would rejoice at having some time alone without the children.  Strangely enough, most parents, especially in the first few years after their separation, feel such a void when the children are visiting with the other parent that they spend their time alone mopping around the house and being – mostly – miserable.  What is important to remember is that you are not alone and you should see this as the perfect opportunity to do something you enjoy and that will lift your mood and feed your spirit.  It is your time to be good to yourself.  You have gone through a lot and you deserve some R and R.  Planning ahead the fun things that you will do during your time alone is as important as making sure that the children have all they need when they are away from home. 

Here are a few tips to help you make the most of this free time and regain your energy. 

1. Cut loose, let your hair down and put your feet up with a tea (or a beer)… every day!  Simply enjoy the peace and quiet in your home.  It may feel strange at first but after a couple of days you may actually enjoy hearing the humming of your  fridge.

2. Call your friends or your family and have a good laugh.  Talk about your most embarrassing moments.  Talking about your ex will only add clouds to your sunny time of relaxation.

3. Buy yourself something you’ve been wanting, such as a book, a new tool, or flowers.  Just choose something that is important to you, even if your budget won’t allow for something extravagant.

4. Treat yourself to a nap, if that’s something you’ve missed and makes you feel better. 

5. Complete a scrapbooking or a renovation project that you never had time to finish and that you can share with your children upon their return.

6. Don’t plan too much and stick to the plan!  Remember, this week is just for you.

Taking care of yourself doesn’t have to be complicated and you don’t have to break the bank to become a happier and more fulfilled single parent.  In fact, most people feel much better about their lives when they take the time to sit down and create their own fun in the sun.

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.

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.