Leaving the country with the children for March Break? Bring a Consent Letter!

Jill is planning to take a boat cruise with the children this March Break.  She is fed up of the cold winter, she is exhausted with the separation process and feels that a good family vacation would do some good.  Jack, however, does not feel the same way.  Jill has so far refused to cover her fair share of the mortgage and if she does not have money for that, she shouldn’t spend thousands on a luxurious vacation south. Jill doesn’t know what to do.  There is no way she can be in court before the scheduled trip and she is afraid that custom authorities will not let her through with the children if she does not have a consent letter signed by Jack… Or should she try anyway?

 

Traveling with children is always a challenge for parents, whether or not you are still together. If you travel with your children and the other parent is not part of the trip, you will need to get the other parent to sign a consent letter giving you permission to leave the country with the children.   A consent letter is normally required by customs whether you have sole custody or joint custody of your children.  It does not matter whether your custodial rights come from a separation agreement or a court order.  If you do not want any surprises at customs, make sure you pack your passport, the children’s passports and an original consent letter in the prescribed form.  The Department of Foreign Affairs and International Trade Canada provides an example of a consent letter that you may use to create your own letter.  For your convenience, you may access this consent letter directly from our FREE Toolbox (click here). However, it is advisable to have the consent letter notarized by a lawyer (or someone having authority to swear an oath such a doctor, legal assistant, city officials, etc.) to make sure that the validity of the other parent’s signature is not questioned by customs.

 

Most separation agreements provide that the other parent’s consent must be sought in advance, and that such consent cannot be unreasonably withheld.  But what happens if your ex-spouse refuses to sign the consent letter?  Unfortunately, this happens too often – but sometimes for very valid reasons (health or safety issues) but sometimes simply as a means to engage the other parent in conflict.  If your ex-spouse refuses to sign a consent letter for no valid reason, you may have to bring the matter to court to obtain the court’s authorization to travel with the children outside of the country.  If the court finds that your ex-spouse’s refusal was unreasonable, it can order your ex-spouse to pay for all of the legal fees you had to incur to obtain the court order.

 

This is of course an expensive – and extremely stressful – way to begin a vacation with your children.  You may also need to book an extra week of vacation just to recuperate!  To avoid these unfortunate situations and to keep having fun in the sun, make sure that your separation agreement or divorce order includes well-drafted and comprehensive travel provisions setting out clear expectations when traveling abroad with the children.

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.