He should pay for my lawyer’s fees!

Jill is really frustrated.  Jack has failed to provide the financial documentation she needs to determine his “true” income for support purposes.  As a result, Jill’s lawyer has recommended that she obtain a court order forcing Jack to provide the information.  Since it is Jack who is refusing to comply, Jill feels that he should be responsible to pay for all the legal fees associated with this court proceeding. However, Jill’s lawyer made it clear that although she will make the request, the final decision is within the judge’s entire discretion.  The judge may, or may not, make an “award of costs” forcing Jack to pay some or even (more rarely) all of Jill’s legal fees. 

 

The number one frustration encountered by a client in a separation process is when he/she is obligated to pay an important amount of legal fees to start a court proceeding just to compel an ex-spouse to do things that he/she should have been doing readily and willingly (i.e., providing financial disclosure, paying child support, paying their share of joint debts, signing a consent to travel abroad with the children, etc.). In Ontario, the court process is designed to promote settlement discussions between the spouses.   Thus, to move the matter towards settlement, the spouses have the obligation to participate in various types of conferences (i.e., case conference, settlement conference, and trial management conference) before they can proceed to adjudication processes (processes where evidence is presented to the judge and the judge imposes a decision on the parties).  While a conference is a less costly settlement oriented process than an adjudication process, judges do not usually award costs in the context of those conferences, unless it is very clear that one party has abused the process. 

 

As a result, it is important to understand that before engaging into a court proceeding (conference or adjudication), you must be able to pay for all the legal fees stemming from the process as you may, in the end, only be able to recover a slim portion from your ex. Court should always be the last alternative in a separation process because the cost of the process may very well exceed the benefit that you gain in the end.

Should I go back to school as an adult student?

Jill is always struggling to make ends meet and she does not really like her job.  More than anything else, she hates to be financially dependent on Jack.  Since the separation, she is longing for a new exciting career with a higher income and better advancement opportunities.  Her greatest challenge is juggling home life, work and school.   Jill’s parents have agreed to help her out with the children during the school year.  However, they have a well-deserved retirement and Jill does not feel comfortable with imposing her family responsibilities on them.    Jill wonders if she should go back to school part-time or full-time, where she will take the money, the energy and the time to tackle this new life project. 

Here are four tips that can make an adult student life a bit easier:

1. Get Financial Help - Unless you have won the lottery or received an inheritance, money is the number one issue for adult student returning to school.  Ask your school for the various scholarships, grants and loans available in Ontario.   Often the applications must be sent several months prior to the beginning of the school year.  Make your budget, understand the debt repayment options available, as well as, the interest rates.  No sense accumulating a $50,000 debt that you will only pay off in 25 years!  Plan this out while you are at the negotiation table with you ex.  For example, you could try to negotiate a lump sum spousal support payment (one larger payment now rather than lower monthly instalments over a longer period of time).  You could also  ask for higher support payments but for a shorter period of time than the law would allow, which would give you the extra cash flow you need while attending school. 

 

2.  Plan study time in your busy schedule - Unless studying becomes your full-time job, you will have to juggle studies, children, and (maybe) a new relationship.  Managing your study time will be pivotal to your success.   Decide what hours/days you need. Making a date with yourself will help you stay focused and disciplined when something comes up during that scheduled time. Try to negotiate with your ex a parenting plan (access schedule) with the children that will give you the time you need to study.  You ex could be more than happy to help out with the children if, in the end it, your income is larger and you become less financially dependent on him or her.

 

3.  Reduce Test Anxiety – It is sad but true, with age and a surcharge of family responsibilities, our memory is not what it used to be when we were young and carefree students.  No matter how hard you study, tests are usually stressful.  Try to organize a special parenting arrangement with your ex during the weeks when you have exams.  School schedules are usually fixed a year in advance.  This gives you ample time to sort out, in  advance, a parenting arrangement for those weeks.  Being organized is the first way to reduce test stress, manage your anxiety and avoid last minute study cramming. When all fails, remember to breathe!

 

4. Create your support system -   Getting help from friends and family will be crucial during this very stressful and hectic time of your life.  Many schools offer group help and day-care facilities.  Friends and family may be more than happy to take the children for a meal and to special activities to help you out.  Don’t be shy and ask for help.  Get ideas from other adult students in your group. You might be surprised to see how many other single parents return to school and how resourceful they are when it comes to organization, household management and child care arrangements!

Remarriage and Spousal Support

Jill has met a new man.  He has never been married and asked her the other day if she would ever consider marriage again.  Jill always thought that once was enough but this man, Gary, is very kind, attentive to her needs and he is very respectful of the children.  He dreams of building a family life with Jill and believes that marriage would be the ultimate commitment. Jill is really not sure about this ‘marriage commitment thing’. She is also afraid that it may affect the monthly spousal support she is getting from Jack and that she has fought so hard to obtain… And then what happens if it does not work out with Gary?

If Jill remarries, she will be faced with three possible scenarios.  Her spousal support may be (1) terminated (2) reduced or (3) continue as is.  The main issue that will be considered by a court will be whether Jill’s remarriage is considered a “material change in circumstances”.  In order to change the spousal support terms of an agreement that you signed, you must show that something important changed in the parties’ circumstances and that if such changed circumstances had been present when the agreement was negotiated, it would have led to a different amount being paid.  So, if Jill’s remarriage was a clear possibility when she signed her agreement with Jack, and the agreement does not state that her remarriage would be “a material change in circumstances”, it is likely that Jill’s remarriage would have no impact on Jack’s future support obligations.

If Jill’s remarriage was not likely to occur in a foreseeable future when the parties signed their separation agreement, it is possible that her remarriage will be considered a “material change in circumstances” allowing Jack to ask that his support obligations be reviewed in light of Jill’s new family circumstances (and increase family income). This would not of course guarantee an automatic change, as Jill’s entitlement to support (particularly if it was being paid to her to compensate her for the economic disadvantages suffered during her marriage to Jack) might not change even if she is remarried.

Sometimes, a separation agreement specifically provides that spousal support will end if the recipient remarries.  In that case, the outcome would be quite clear and the spousal support would end the day Jill says “I do” for a second time. 

Spousal support is complex.  When dealing with this issue, courts (and lawyers and mediators) will have the following four objectives in mind: 

 

1) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; 

 

2) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

3) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

4) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

 

If you are contemplating remarriage, spousal support is only one of the issues that you should  consider carefully with your legal advisor. Understanding how to protect your property in a second marriage (by entering into a marriage contract) is also key to happy endings. Visit our website at www.familylawinabox.com and listen to our program on Division of Family Property for Married Spouses (click here).

Just ask the Taxman and you shall receive money!

Tax filing season is here again. Jack knows that tax deductions and exemptions reduce the amount of income on which he has to pay tax, in contrast to a tax credit which means a dollar-for-dollar reduction in the actual amount of the tax that he has to pay.  Although Jack pays child support for the two children, he cannot deduct the amount from his income.   However, the monthly spousal support he pays Jill is a deductible amount.   Jack knows that he will owe the Taxman money again this year and as a good Canadian citizen he will pay his dues.  However, he is also looking at ways to keep money in his pockets as he would love to buy a pontoon boat which would make his summer vacation with the children so much fun. 

Here is a list of some child tax benefits and credits that might be available to you from the federal and Ontario governments:

1. Child Tax Credits - This federal credit can save you up to $329 for each child under the age of 18.

 

2. Canada Child Tax Benefits - The federal CCTB is calculated for July to June yearly and could bring in to a low-income family with two children up to $555 in additional savings.   If Jill and Jack shared custody of the children (50-50 or 70-30), the CCTB would be divided equally but since both kids reside with Jill (70-30), she is the only parent eligible to claim the CCTB.  In Ontario, depending on your income, you may also be eligible to claim the Child Care Benefit and the Child Care Supplement. 

 

3. GST Credit:  This federal tax-free quarterly payment helps individuals and families with modest income offset all or part of the GST that they pay.  To receive the GST credit you have to apply for it every year.

 

4. Child Fitness and Art Tax Credit – At the federal level, for each child under 16, parents may claim a tax credit of up to $500 registered in a sport like ballet, hockey and soccer and another $500 for artistic and cultural activities, like art or music lessons.  In addition, the Ontario government offers the Children’s Activity Tax Credit where you can claim up to $526 in eligible expenses and get up to $52.60 back for each child under 16.  You can receive up to $105.20 back for a child with a disability who is under 18.

 

5. Universal Child Care Benefit – The federal UCCB provides families with $100 per month for each child under the age of 6 or $1,200 per child, per year.

 

6. Eligible Dependant – If you were a single parent during 2012, you may be able to claim an eligible federal dependent tax credit for one of your children which is equivalent to claiming a dependent spouse.  However, whether or not you receive spousal support you are entitled to this credit.  In the case of Jack, since both kids reside with Jill, he may not claim them.

 

7. Child Care Education – Child care expense can be claimed to the federal government when you hire a babysitter or put your child in a daycare or summer camp to enable you to go to work (or attend school).  If you enrolled your child in a fitness program or summer camp, which operates during the hours you are working, then you must first claim the cost as a childcare expense.

 

8. Medical Expenses – Save your receipts whenever you buy glasses for your children or take them to the dentist as you may claim them at the federal level.  If you have a group health insurance plan at work, then only the portion that is not reimbursed is available for you to claim.

 

9. Child Disability Benefit - The federal and provincial governments provide child disability benefits.  If you believe your child is eligible for this benefit, ask your doctor or occupational therapist to complete a Disability Tax Credit form.

 

10. Tuition Tax Credit  - The federal government offers textbook amount and scholarship and bursary exemptions.  Also, if your child attends a university or a private school, you may claim the applicable tax credits from the Ontario government. 

 

Find out more information about Tax Benefits and Credits by visiting the section in our ToolBox (click here). 

Watch What You Write on Your Wall…

Jill is very upset with Jack and vented her frustrations on Facebook.  Her friends “liked” her comments.  Unfortunately, Jill forgot that one of her friends is also friends with Jack’s teenage niece who has her phone glued to her hip and who instantaneously saw the comment Jill made about her uncle.  Of course, she immediately shared it with her mother, Jack’s sister.  Even if Jill wanted to erase her comment, it is too late and Jack has already seen it. 

Social networking services such as Facebook, Linkedin or Twitter have not only become a “marriage killer” – you would be surprise to learn how many people discovered that their spouse was cheating through these means -  they also have the potential of becoming a “best case” killer in court or in a divorce settlement process.  When a separation gets ugly, spouses may be tempted to use social media as a channel to vent their anger, bash their ex-spouse’s actions and get support from common friends and family members in what they believe to be their “just cause”.   

 
If you are using social media to show off your new “hot” girlfriend to your buddies, or to gain support from your friends, rest assured that this evidence is going to find its way into the court room – or in your ex-spouse’s lawyer’s hands–quicker than you can think.  Yes, this type of evidence can be used against you in court and in other settlement processes.  Imagine, with your own actions and your own words you may give your ex-spouse the evidence he or she needs to discredit you and prove his or her point against you.  Your children could find your disparaging comments in future years.    It is hard for parents to argue that they have their children’s best interest at heart – and thus should be granted sole custody of them – when evidence proves that they have spent the past two months destroying the other parents’ reputation in social media.   Even worst, your children can be scared emotionally in the process, especially if your comments are available for the whole world to read. 

Finally, it is not enough to try to limit the damage by shutting down your existing account, locking down your privacy settings or “untagging” your images and pictures.  The damage may be impossible to control down the road as social media tends to leave permanent traces.  Remember that social networking services were created to help people stay in touch. Therefore, if one day you have the urge or the need to vent about your ex or the events related to your separation, just pick up the phone and talk to someone before writing it - permanently - on  your wall. 

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.