It’s his fault! He should pay more! (No-Fault Divorce)

Jill suspects Jack has a new girlfriend, possibly pre-dating the separation.  Jill wants to obtain a divorce and she is wondering what gains she can make as a result of Jack’s indiscretion…

In Canada, we have since 1986 what we call a “no-fault” divorce regime.  This means two things.  Firstly, you can ask for a divorce without having to demonstrate misconduct by either spouse, so long as you can show that you have been separated for at least one year.  It is the most common method of obtaining a divorce in Canada.  Divorce is an emotionally and financially taxing process and fault-based grounds of divorce (adultery, cruelty) require proof, which may intensify an already painful and expensive process.  Additionally, the law recognizes that family relationships are complex and matrimonial misconduct is not always the cause of the breakdown of a marriage.

Secondly, “no-fault” divorce means that your rights and obligations following a separation will be the same regardless of “whose fault” the separation is.  In other words, whether you separated amicably by mutual consent or whether you separated as a result of your partner’s adultery or other type of marital “misconduct”, the financial end result (division of property and financial support) will be the same.  Proving adultery, for instance, will not get you a bigger financial settlement.

So is there any benefit to proving cruelty or adultery within a marriage?  Beyond granting a divorce, the court will seldom (if ever) consider adultery or cruelty when making decisions regarding financial issues.  However, the courts may consider these as factors surrounding matters relating to children, if they influence the spouse’s ability to parent.  For instance, if a spouse has anger management issues resulting in domestic violence, this will obviously affect his ability to parent his children. However, it will not result in a higher spousal support (alimony) award. There is also a possibility of claiming damages as a result of an assault, but this requires a clear demonstration of injury and its

consequences. 

By choosing a no-fault basis for divorce (even if you feel that there has been some marital misconduct by your ex-spouse) you will alleviate some of the major stress of the process with regards to time, financial burden and emotional turmoil.  You may also be able to move on from the relationship without drawing out the process, particularly since there is no real advantage to be gained from the fault-based process.

Domestic Violence Court Program

Jack just received a disturbing telephone call from his sister Anna late last night.  During an argument between Anna and her husband, violence erupted and a call to 911 was made by the oldest daughter.  Since a mandatory charging policy has been implemented in Ontario to improve the system’s response to domestic violence, if there are reasonable grounds, the police must lay charges.  In light of the circumstances, the police officer also made a dual arrest as he had reasonable grounds to charge both the offender and the victim.  Both parties must now appear in court and Jack wants to be present for his sister. 

Domestic violence, also referred to as intimate partner abuse, is a crime in Canada.  Though primarily perpetrated by men against women, it can also be carried out by women against men or even in same-sex relationships.  Domestic violence takes on many forms not limited to physical violence, and the complexities of these relationships may result in victims repeatedly exposing themselves to potential violence. 

In Ontario, the Domestic Violence Court  (DVC) Program accounts for the unique relationship between offender and victim as well as other individuals affected by the violence, such as children.  The DVC deals with domestic violence cases in several ways, including, intervening early on in abusive situations, providing assistance to victims, and holding offenders accountable for their actions. 

The casualties of domestic violence are not limited to those directly involved, thus consideration is given to the safety of other family members such as children as well.  There are several components and specialized personnel that assist the operation of this program, including: police, Crown Attorneys, the Partner Assault Response (PAR) program, the Victim/Witness Assistance Program (VWAP) and other community agencies.  

The PAR program instructs and provides guidance to offenders ordered to follow the program by the court.  Its purpose is to hold offenders accountable for their abusive actions and to increase the safety of victims.  Offenders obtain the tools necessary to analyze their behaviour and to resolve conflict in a non-violent way.

The VWAP program is set-up to assist victims and witnesses of crimes by facilitating their understanding of the criminal court process and providing support as they participate in the process.  This service is not limited to domestic violence cases, as it also assists victims/witnesses of child abuse, sexual assault and homicide.  This program is meant to serve the vulnerable individuals involved in such crimes.  The services are provided from the time charges are laid to completion of the case.  Assistance offered includes: emotional support, court preparation and case information, as well as referrals to other organizations that provide support

It’s summer and kids just want to have fun!

While sipping her coffee this morning, Jill was thinking of her childhood and remembered the times when she slept ‘till noon, spent hours in front of the TV in her PJ’s and played outside all day with her siblings and friends.  Jill feels that since she and Jack separated, with the kids having to deal with two homes and the ever changing parenting schedule, they just don’t have time to “chill” anymore – as they say.  The summer vacation plans have become soooo complicated since both parents want to enjoy quality vacation time with the children.  Jill understands the need for her to recharge her batteries as well, as the school year was quite hectic with the many changes and challenges brought about by the separation and trying to keep up with the homework and extracurricular activities’ schedule.

If that sounds like your current life circumstances, here are a few tips that you might want to keep in mind when preparing summer plans for you and your kids. 

The golden rule:  KEEP IT SIMPLE and FUN! 

1. Stop pressuring yourself to create the perfect summer for your children. You're not a cruise director; you're a parent.  Ask the children to help you plan the activities. You’ll see, they have the most amazing (and simple) ideas. Remember, there is a lot to be said about quiet dinners on the patio, picnics in the backyard and ice cream cones on a hot night.  Running through the cold water sprinkler can easily replace the public pool.

2. Try to work, clean your house, or do volunteer work while your children are with the other parent.  Save the fun events for the days your children are with you. If your schedule conflicts with your ex’s, try to compromise keeping in mind that the end goal is to give your children a relaxing and fun summer.   Although it may not be easy to deal with an ex that keeps messing up your plans, patience and flexibility always make things easier in the end.

3. Friends are extremely important for children, particularly older ones, and your super-organized schedule may not fit their plans for simple play time in the backyard or at the park. If required, go the extra step and offer to drive your kids’ friends to and from your home.  Serving a glass of iced juice with homemade chocolate cookies on the picnic table can win you the award of the “coolest” neighbourhood parent.

4. Let’s face it, often you can’t spend the whole day playing with your kids. Don’t feel guilty. Just look with your children for alternatives that will keep them happy while you are busy doing other things. Again, involving your children in planning their activities gives them a sense of control over their schedule which is often taken away as a result of sharing two homes.

5. Last but not least, plan for some adult fun for the days the children are away. You also need time to enjoy your summer vacation and to regain your energy.  Take time to explore new places or simply invite family and friends and just relax and laugh in the backyard.  Remember the golden rule:  KEEP IT SIMPLE and FUN!

“I am not the bank!” - Children’s special and extraordinary expenses

Jack sometimes feels like he is considered a banker as the kids always need something new and Jill keeps on asking for money.   Now, it is braces and bikes.  Jack considers that the monthly child support he gives Jill should be enough for her to cover all those expenses.  Now that they are separated, he also has his own housing expenses to pay and there’s no way he is going to go into debt because Jill is unable to properly manage her money.   Jack strongly feels that it is time for Jill to learn how to live within her means.  After all, he is not a bank. 

Often, custodial parents are blamed by the ex for spending too much money on the children.  Under Canadian Federal and Provincial laws, children are entitled to financial support from both parents even if they are separated or divorced.  After all, it does take money to raise children and the expenses just get bigger as the kids get older. 

In Canada, child support is made of two components:  the basic table amount (meant to cover all basic needs) and the contribution to “special expenses” (meant to cover specifically defined types of expenses).  The basic amount is determined using the payor’s gross annual income in accordance with the Federal Child Support Guidelines.  Click on this link to access the federal child support calculator:  http://www.familylawinabox.com/en/resources_child_support.php 

Most disagreements in the area of child support arise with regards to special expenses, to which both parents must contribute in proportion to their respective income.  For example, if mom earns $25,000 per year and dad earns $75,000 per year, mom would have to contribute 25% towards the cost of special expenses and dad would have to contribute 75%.

As set out in section 7 of the Guidelines there are six specific categories of special expenses:

1. Child care (i.e. daycare)

2. The portion of medical and dental insurance premiums paid by either parents to cover the children (that portion that is paid by the employee)

3. Health-related expenses exceeding $100 a year (i.e. orthodontics, counselling, prescription drugs)

4. Extracurricular activities (i.e. horseback riding, hockey, music)

5. Primary or secondary education programs (for example, tutoring or the cost of a special software for a child with disability)

6. Post-secondary education costs

As usual, family law is not as simple as 1-2-3 and special rules apply to special expenses.   Even if an expense fits in one of the categories described above it does not mean that the parents must necessarily contribute to it. The expense has to be necessary for the child, and reasonable in light of the parent’s financial means.  Extracurricular activities or primary and secondary educational costs also need to be “extraordinary”.  Confused yet?  To help you understand your rights and obligations we have created a program entitled: « What is a special or extraordinary expense?”  which you may access by clicking here for more information.

While this is not specified in the Guidelines, the best practice for parents is to consult one another BEFORE an expense is incurred for the children, unless the expense is absolutely necessary (like child care or medical expenses).  Judges frown at parents who spend money on special expenses without requesting the other parent’s permission and then try to collect.  If you do that, a judge may deny you the reimbursement. 

How to choose a family lawyer?

It has now been three months, and conflict between Jack and Jill is reaching an alarming level.  Until recently, Jill believed that she would be able to resolve family issues with Jack amicably without the need for lawyers to get involved. This no longer looks like a possible outcome.  As a result, Jill is looking for a family lawyer.

How does one choose a family lawyer?  Hiring the right professional is certainly one of the most important decisions you will have to make in the context of your separation.  The choice of lawyer you make may have a significant impact on your financial future, the length that it will take to resolve things, and the amount of legal fees you will have to pay.  Most importantly, your children’s well-being and your ability to co-parent cooperatively with your ex in the future may forever be affected by choosing the wrong lawyer.

To choose the family lawyer who will be the perfect fit for you and your particular situation, take into consideration the following:

- Do you want a fight or do you want to remain civil and amicable?  If you want to do this as peacefully as possible, look for a lawyer who has a mediation or collaborative law training.  If you want a hired gun who will defend you fearlessly against an abusive and/or vindictive ex-partner, seek someone with a lot of court experience.

- Do you need an expert in family law or someone who has great negotiation skills?  While the expert may be better if your case presents some complex legal issues (often when the couple has accumulated significant wealth), if the main issue of contention is the care of your children you may be better served by someone with great negotiation skills rather than lots of academic knowledge;

- What is your budget? If you have limited means, you may want to look for a sole practitioner as opposed to hiring a lawyer who is part of a big law firm.  Sole practitioners or lawyers in smaller practice can usually offer more flexibility than large firms in terms of payment plans and hourly rates.

No matter what type of lawyer you need, in all cases you want to make sure that the lawyer who will help you with your case will have the following essential attributes:

- He/she practices exclusively in (or at least the larger part of his/her practice is dedicated to) the field of family law.  While your best friend, who happens to be a real estate lawyer, may be willing to help you (even for free), he/she does not have the necessary skills;

- He/she is available and responsive.  A two-day delay for a return call from your family lawyer is just not acceptable in the highly emotional field of family law which often presents emergencies;

- He/she is compatible with you.  You and your lawyer need to be on the same page when it comes to making decisions in your case.  As you will need to work closely together, you don’t want to work with someone who makes you feel unworthy or with whom you do not feel comfortable.

- He/she must treat you as an equal and essential part of the team.  You want a lawyer who listens to you, who seeks and considers your views, who keeps you informed of every event and development in your case, and who works collaboratively with you towards a final resolution.  You are not hiring a lawyer to make decisions for you.

- He/she must be a teacher, a coach and be candid and honest in the opinions he/she gives you. Way too many lawyers see their role as either your decision maker or your cheerleader.  You want neither.  You want someone who explains to you in clear language how the law works, who tells you when you are unreasonable or when your position is weak, and who leaves it to you to make your own decisions based on the information you have been provided.

In case of doubt, seek references from your friends, colleagues and family members who have been through a separation before. They most likely had to work with family lawyers and are a great resource when it comes to making that very important decision.

It only takes a minute to make a phone call!

It is 6:03 p.m. and Jill is home waiting impatiently for the children to return from their visit with Jack.  It is now seven o’clock and the children are still not home.  Jill is really worried that they had a car accident and tries to call Jack on his cell phone but, as usual, she gets the voicemail.  It is 7:52 and Jill is close to tears when finally the car pulls into the laneway.  The children are happy to see their mother, Jack acts like nothing happened and wonders why Jill looks so weird and upset. 

If this scenario sounds familiar, just know that you are not alone. Agreements around children’s exchanges are sometimes not followed and can be a perfect opportunity for an irritated parent to upset the other as a result of thoughtlessness, immaturity, or simple lack of respect.  Unfortunately, there is often no legal sanction for this type of behavior.  Disputes arising from the implementation of the parenting provisions of a court order (such as exchange times) are civil matters, not criminal ones.  The police usually does not get involved unless there is a risk of harm to one parent or the children.

How can you manage your children’s exchanges effectively?  Obtaining a solid parenting agreement containing detailed expectations and built-in sanctions for misbehavior may be the answer to your problems. Your agreement should allow for a reasonable exchange time window as it happens to everyone to be “reasonably” late because of traffic, work or some other unavoidable delay.   However, if the parent does not call to notify the other parent or simply does not show for the visit, then the agreement should provide that the parenting time is lost so as to allow the other parent to carry on with his/her day. The same sanction could apply to future parenting time if the children are not returned on time after a visit. You may also want to consider asking for the exchange to take place in a public location such as a restaurant or coffee shop.

Is it possible to change your current, ineffective child custody order or parenting agreement? Yes, but you will need to go to court and ask a judge to vary the terms of your agreement or order. Depending on your current situation, this costly process might be worth your while in the long run and may be in the best interest of the children who are often caught in the middle of these high conflict situations.  Be sure to journal all the exchanges – the good and the bad – as you may need to provide the court with detailed accounts of the exchanges.

Parents and children both deserve a life post-divorce that is devoid of chaos and stress. This is easily achieved when both parents maintain a mutually respectful co-parenting relationship. Remember that good accounts make good friends and it only takes a minute to call and inform the other parent that you will be late. 

Tax Headaches for Separated Couples…

Here comes tax season again, and it’s time for Jack and Jill to pay the price for being respectful and abiding Canadian citizens.  It is hard enough to disentangle income tax issues when the family unit is still whole, imagine the complications that can arise when you have just separated and you do not have a finalized separation agreement. Canada Child Tax Credits, Harmonized Sales Tax Credits, Universal Child Care Benefits, Dependants Claims and National Child Benefits are only a few of those complex issues that need to be dealt with and Jack feels overwhelmed.  To make things worst, his lack of “meaningful” communication with Jill at this stage of their separation process is actually making income tax filing a true headache.   

If you were represented by a family lawyer when you signed your final separation agreement, you should not have to worry about future tax implications as your counsel should have carefully assessed them and included specific provisions in the agreement to help you determine which tax credits and benefits each of you is entitled to claim. However if, like Jack, you do not have such an agreement, here are a few tax principles that you absolutely need to be aware of:

 

 

1-     Child support payments. These payments are not tax-deductible for the support payor and are not included in the recipient’s income for tax purposes.  Support Payors Beware: You cannot claim an income tax deduction for the child support payments you made this past year.

  

2-    Spousal support payments. These payments, however, are included in the income of the support recipient and are deductible from the support payor’s income (unless the support was paid in one lump sum in which case different rules apply).  However, to be deductible the obligation to pay spousal support must be confirmed in a written separation agreement or a court order.  While Revenue Canada will recognize support payments made in the year preceding the execution of a separation agreement in most circumstances, you do not want to take a chance and you should confirm any spousal support obligations in a binding agreement (even partial, even signed at the kitchen table) without delay. Spousal Support Recipients Beware: You may need to pay income tax on the money you have received from your ex this past year, so make sure you put some money aside.  For more information on this topic you can visit the following Canada Revenue Agency link:

     

      http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncm-tx/spprtpymnts/menu-eng.html.

3-    Shared custody arrangement. A shared custody arrangement (for tax purposes) means that each parent spends an equal amount of time (or a near-equal amount of time) with the children in any given year.  In that case, the rules can get real complicated.  You can obtain more information by visiting the following link on Canada Revenue Agency’s website: http://www.cra-arc.gc.ca/bnfts/menu-eng.html.  Share Custody Parents Beware:   Do not leave your money to the Taxman! Figuring out what tax credits and benefits you are entitled to and for what period of time can be a complex task.  You should consult with an accountant who will help you breeze through that determination.