Who keeps the family pie?

Jill is hosting a girls’ night out at her house.  She starts talking about her divorce with Jack and explains that she’s entitled to “half of everything”. Her friend Sandy who also went through a divorce 5 years ago tells her that that’s not how it works.  “You divide the value, not the assets”, she says.  A discussion on the subject enfolds and Debra, who has lived in a common law relationship with Dave for 5 years wonders if she would be entitled to claim half of everything as well as a common law spouse. Kathy thinks so, since her cousin got half of her ex’ house after a lengthy court battle, but Carolyn is convinced that this is not the case. And everyone is confused.

 

The rules applicable to the division of family property differ significantly depending on your legal status (married or living in a common law relationship), and also on the province in which you live. In fact, each of the Canadian provinces has its own way of dividing family assets when a separation occurs, whether married of in a common law relationship.

 

For married spouses, there are many general principles that apply in all provinces. The most important one is that all provincial laws share a common goal: to divide equally – or at least fairly – between the two ex-spouses the wealth accumulated by the couple during the marriage.  The basic principle underlying the various provincial family property division schemes is that marriage is a financial partnership and it does not matter who paid for the assets, whether a spouse has contributed more than the other, or who is the actual legal owner of any given asset.  In Ontario, the value of all assets acquired by the spouses (jointly or individually) during the marriage will have to be shared between them. In other provinces, the assets themselves get divided. In some provinces, like British Columbia, the court has the discretion to divide a married couple’s family property the way it feels fair and equitable. In most provinces, however, the judge has no discretion and must abide by very strict rules to which there are many exceptions.

 

For common law spouses, the right to share in the other’s property – and the way property is to be shared – when a separation occurs varies from province to province. For instance, in Manitoba and Nova Scotia, common law spouses are given substantial rights to share in the other’s property after separation.  But in other provinces, like in the province of Quebec, common law spouses have absolutely no right at all to claim a fair share of the property acquired by the other spouse during the relationship.  In Quebec, what is yours is yours and what is mine is mine, so to speak.  In other provinces, such as the province of Ontario, common law spouses are presumed to have no right to share in the other’s property, but if very specific circumstances exist, courts will allow common law spouses to share in some or all of their spouse’s assets upon separation.  It is a myth to believe that you are entitled to half of your ex’s assets if you have lived in a common law relationship for more than three years!  When the parties cannot agree (as is often the case) on how to divide their assets, they will have to bring the matter to court and let a judge decide. This process is, as you know, very costly and (so far as common law spouses are concerned) very unpredictable.

 

Because the laws of each province are so drastically different when it comes to splitting this cherished family pie, it is extremely important to understand the regime that applies to your particular situation, in your particular province. Take the time to inform yourself and obtain proper legal advice BEFORE you move in with someone, get married, make a significant financial contribution or investment in joint assets or in assets belonging to your spouse.  Entering into a well written cohabitation agreement (common law spouses) or a marriage contract (marriage spouses) could avoid many heartaches and headaches.  Why wait until a separation occurs to find out that after all these years of emotional and financial investments, you are not even allowed to eat a piece of the pie…

Life insurance to secure child support: There’s no way I’m leaving you this money!

Since the separation, Jack has never stopped paying the monthly premiums for the life insurance policy that he and Jill bought during their marriage.  As there is no chance of reconciliation, Jack wonders whether he should stop paying for Jill’s portion of the monthly premiums.  After all, why isn’t Jill paying for her own premiums? Jack’s friend Dave also told him that he should immediately remove Jill’s name as the beneficiary of his insurance policy and put the children instead.

 

If Jack was well advised, he would do neither.  When parents separate and there are dependent children to care for, it is very important for both parents to maintain life insurance coverage sufficient to provide for the children should the unthinkable happen.  As long as the children remain dependant financially, both parents have a continued obligation to provide financial support –child support – whether they are paying it or receiving it.

In most cases, when a parent dies, the children move in full-time with the surviving parent who is left with having to financially support the children, without any financial contribution from the other parent, unless proper life insurance coverage is in place.  Even if the deceased parent has made a Will and named the minor children as beneficiaries of part or all of his or her estate, the reality is that it often takes months, if not years, for an estate to be administered and the gifts to be distributed.  Furthermore, the Will may prevent the children to have access to the money until they are 18 years of age or even older.  In the meanwhile, the surviving parent struggles and the children suffer unnecessarily. 

 

Here are some additional reasons why separated parents should maintain life insurance coverage naming the other parent as irrevocable beneficiary in trust for the children AT ALL TIMES:

1. If you die and have made no provisions for the other parent to receive money for the support of your children, the surviving parent may very well sue your Estate to obtain that support.  This is bound to delay the administration of your estate considerably, in addition to forcing your executors to engage significant legal fees to defend the action and settle the issue, leaving less money for the children in the end.

 

2. If your child is a minor at the time of your death, he or she will not be entitled to receive any monies directly (from your Will or your insurance policy).  The monies will have to be administered by the person you named as trustee for your children.   If no one was named, the monies will be administered by the Office of the Public Guardian (OPG), a governmental institution who will step in to administer your financial affairs and decide what is best for your children.

 

3. Having your ex-spouse as beneficiary in trust of the life insurance proceeds for your children with specific directions as to how the funds may be used by him or her, and what is to be done with any leftover once the children cease to be dependent, will insure that the monies are used properly for the benefit of your children.

 

4. Your children will have immediate access to funds to maintain their standard of living after you are gone.  They will be able to pursue their activities or schooling, and there will be no gap between the time of your death and the time they have access to the fund they need to pursue their daily life.

 

5. Proper life insurance simplifies the lives of everyone involved if one of the parents dies, and the cost to maintain relatively large amounts of temporary life insurance coverage is quite minimal - depending of course on your age and health condition. 

Making sure your children are provided for in the event of your death is a part of being a responsible and loving parent.

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. 

Should we involve the Office of the Children’s Lawyer in our parenting dispute?

Jack thinks that Jill is unreasonable when making plans regarding the children.  She refuses to be flexible when it comes to dividing the time with the children on holidays, sharing information from the school, or letting him take the children for more than a few days here and there. Jack wants to have the children with him half the time to regain his place as a parent in their lives.  His friend has suggested that he should consider getting the Office of the Children’s Lawyer (OCL) involved but Jack is leery to engage the children in a process that he does not understand. 

The Office of the Children’s Lawyer is a government-funded organization that oversees that justice is being served on behalf of children (under 18 years of age) through the delivery of various services in the province of Ontario.  It is important to note, however, that the OCL’s involvement in custody and access cases is not automatic.  Their services may be requested by a judge in the context of a court case but there is no guarantee that the OCL will provide services.  If it does, then those services will be provided free of charge to the parents.  In essence, the OCL steps in as an objective third party to introduce some impartiality in disputes between parents.  The OCL can provide two very useful services: independent legal representation for children and custody and access assessments performed by trained social science professionals.

Independent legal representation will normally be provided when the child is older or at least sufficiently mature to express his opinion about his preferences. The child’s lawyer will be an advocate for the child and his/her role and responsibility will be to convey to the judge the child’s wishes and preferences with regards to the visitation arrangements that he would prefer.  For younger children or for families that present important challenges (such as allegations of domestic violence, substance abuse, parental alienation or where a child has special needs), the OCL may become involved by carrying out a comprehensive family assessment.  Following such an assessment, the OCL’s clinical investigators will report to the court to provide recommendations about the custody and access arrangements that would be best for the children.

The OCL’s services are very effective at helping parents make decisions that are in the best interest of their children, when they have not been able to do so on their own. Of course, it is always best for everybody when parents are able to agree between themselves as to what is best for their kids, as parents may not be happy with the recommendations made by an outsider, be it a judge or the professionals working for the OCL.

Who keeps the paws? Do I need to share the dog too?

Jack and Jill had a fight over their family golden retriever, Honey Bun.  Jill refuses to allow Jack to take the dog with him in his new apartment.  Honey Bun is Jack's dog.  He was the one who decided to buy it, against Jill's wish, but now she refuses to let Honey Bun go live with Jack.  Jill claims that Honey Bun truly belongs to the children who are very attached to their family pet and as a result, the dog should remain with them in the family home. 
 

Couples who go through separation and divorce can spend a lot of time fighting over how they will divide their personal property like the home, the pension plan and the furniture.  Often, bitter disputes arise about who will get to keep the family pet.  The family dog or cat is as much a member of the family as anyone else and it can be very difficult to part with them. 

When deciding who should get “custody” of the family pet, people focus on their own personal wants and desires and on what they feel would be best for the pet (or for themselves).  Sometimes one spouse uses the pet to try to exert control over the other spouse – and sometimes it works... When there are kids involved, the family pet often becomes a football as the parents figure that where it lands will be where the children will want to land as well.

But here is one thing you might not know:  in the family law landscape, a pet is considered a piece of property (it seems cruel doesn’t it?) and if the issue of who gets Honey Bun is ever decided by a judge, the person who holds legal title to the dog (i.e. the person who can show proof of payment) will be entitled to walk with it.  Keeping this in mind, a pet IS nonetheless a living being (unlike the chair and the RRSPs) and when deciding who should keep it, you should consider the following:

• Who originally purchased the pet?
• What was the intention of the family at the time of purchase?  That the pet be the kids’ friend?
• Who will have primary care of the children? Keeping the pet with the kids can be very important during a divorce because it provides some stability and comfort.  Maybe the pet should travel for a while?
• Who took care of the pet while you were together? Often, parents buy the pet for the children but mom or dad ends up taking care of it full time as the children loose interest in it. Who has become the dog’s Master?
• Will a change in environment result in a change in the pet’s behaviour, including unwanted ones?
• Who has the financial means to keep the pet, i.e., to pay for the food, care and vet bill (if you don’t have a pet, do know that they can become quite expensive to maintain).  Unlike child and spousal support, you cannot get “pet support”!

As with anything else, if you go to court the decision will be made according to the law (i.e. the dog follows its legal owner), but if you settle the issue outside of court, you can be as creative as you want and use a common sense approach when it is time to decide who keeps the paws.

Get a job! The truth about spousal support

Over the summer months, Jack and Jill had lengthy discussions and arguments about how they will move forward with their separation.  For the time being, Jack has agreed to let Jill live in the family home and he has rented a nice three bedroom apartment for him and the children.  This  decision will allow Jill to put some distance between them and will help reduce the conflict to which the children have been exposed to these last few months. Jack and Jill have also had several heated discussions about child and spousal support.  Jill still works part-time and she needs additional financial support, beyond the child support she is currently receiving, to pay for household expenses while the parties continue negotiating their separation. Jack feels that Jill should finally get a full-time job and pay for her own bills. 

There are a lot of misconceptions surrounding spousal support.  “Women don’t have to pay spousal support”  “I don’t have to pay spousal support if I am not married” “Spousal support is forever”… and many more.  Spousal support is a very complex topic (even for lawyers…) and to explain it properly would take many more pages than what is available for this article.  But here are a few important things to know about spousal support.

 

• Both married spouses and common law spouses may have to pay spousal support;

• Both men and women may be ordered to pay spousal support;

• Spousal support is an amount of money that one spouse pays to the other on a monthly basis, or as a one-time lump sum payment, to achieve one or more of the following objectives:

• Recognize that one spouse has suffered an economic advantage or disadvantage and compensate that spouse for that;
• Attribute fairly between the two spouses the financial consequences that one suffers as a result of caring for the children (either during the relationship or after its breakdown);
• Help a spouse who has a financial need after the separation;
• Help a spouse to achieve financial self-sufficiency.

• When determining the amount ($$) and the duration (# of years), if any, that a spouse is entitled to receive spousal support for, the following factors will be taken into account (this is not an exhaustive list);

• The number of years during which the parties have lived together;
• The parties’ respective income;
• whether the couple still have dependent children;
• the parties' age as well as their physical and mental health;
• the parties’ standard of living during the relationship;
• the parties’ current assets and financial means, including what they are likely to get in the future;
• the capacity of the recipient to contribute to his/her own support, by working or otherwise, and the amount of time it will take him/her to achieve self-sufficiency;
• the payer’s capacity to pay support;
• whether or not the recipient has helped the other spouse to build a career or a business.

It is also important to note that the fact that a spouse has cheated on the other has no impact on how much spousal support is payable, or how long.  Also keep in mind that spousal support is tax-deductible in the payer’s hands and taxable income in the recipient’s hands.

As I said previously, spousal support is complicated and there is no hard and fast rule that governs its determination. And in addition, support entitlement and/or obligations, in certain cases, can last a very long time and you want to make sure you are paying/receiving the proper amount. So before you agree on anything about spousal support, you should meet with an experienced family lawyer (even if only for an hour) to obtain proper legal advice on this topic.

Becoming a single parent doesn’t come with a manual!

Jack is doing very well as a single dad.  He is proud of his children who seem to be coping fairly well with the separation, with the exception of a few crying spells at night as they miss their mother’s kisses before going to bed.   Jack is worried, however, of the long-term effects of the separation on the children.  Research studies demonstrate that, although a separation can be tough on kids, particularly in the first few months following the break-up, what is really damaging to a child’s health, development and overall well-being is parental conflict.    Children are like sponges and they know and sense when something is wrong, no matter their age.   Babies cry when they feel tension between the parents, while teenagers will slam the doors to be heard.   Being a child of separation himself, Jack knows that what children want most is to be loved by both of their parents.  Since becoming a single parent did not come with a manual, Jack has read a few books where many professionals have provided advice on how to help children cope with separation and divorce and adapt positively to their new lives. 

Here are a few useful tips that guide Jack in his everyday life as a single dad:

1. Tell your children the truth in simple terms with simple explanations. Tell them where the other parent has gone, how the summer and Christmas holidays will be organised etc.  (It’s all in the delivery of the message.  Choose your words and tone of voice).

2. Tell your children that they will continue to be taken care of and that they will still be safe and secure.  (Even after the separation, children need to be constantly reassured).

3. Children see that parents can stop loving each other.  Reassure them that a parent's love for a child is a special kind that never stops. (Saying I love you is more important than ever).  

4. Children feel responsible for causing the divorce. Reassure them that they are not to blame.   (Showing love and understanding is more important than ever).  

5. Children often hope for years for their parents to get back together and feel responsible for bringing them back together. It is important to let them know, gently but firmly, that the breakup is final.  (It may not be easy to say especially if you are still in denial yourself.  However, giving false hope of reconciliation is not healthy for anyone involved).   

6. Avoid situations where the children must choose between parents such as:

• Using the children as a way to get back at your spouse. (Children can feel that they are being used and can be terribly wounded).

• Saying bad things about the other parent in front of the children.  (It is not always easy to remain the bigger person when you are hurting however, no one can take away your dignity).

• Saying things that might discourage the child from spending time with the other parent. (What goes around comes around).

• Encouraging the children to take sides. (All they want is to be loved equally).

7. Even though it may be the last thing you feel like doing, cooperating with your spouse during your divorce is one of the best gifts you can give your children (Cooperating responsibly with the other parent toward the growth and development of your children is an expression of your mutual love for them.)

Parenting is forever and being a single parent can be very hard at times.  When you don’t know what to do anymore because nothing seems to work anyway, just remember that the best tools you possess and to which all children react positively to are LOVE, PATIENCE and UNDERSTANDING.