SAME-SEX PARENTS AND BIRTH REGISTRATION

Until very recently, same-sex parents could not register the birth of any children they chose to have together showing both same-sex parents on the registration. The Registrar of Vital Statistics required that one parent on the registration be male, and one female. The non-biological same-sex parent was required to go through a formal adoption in order to be recognized as the child’s other parent.

A recent case from the Ontario Superior Court strikes down this requirement, at least for lesbians. In a decision released June 6, 2006, the Ontario Superior Court has held that the Vital Statistics Act offends the Charter because it requires that babies be registered with one mother and one father. The case allows that at least in the case of lesbian couples, both women may be registered as parents of any children they choose to conceive together at the time the baby is born, without having to suffer the expense (and indignity) of a formal adoption.

The case may also leave open the possibility that more than two parents may be registered on a child’s birth record. For example, a child may have two biological parents and a different birth mother. It is possible, using the reasoning of this decision, to have all three parents registered as a child’s "parents".

The reasoning in the case likely supports two gay men being able to register as a child’s parents, without the need for one of the men to adopt the child.
This is a well-reasoned, well-written case. The court has carefully analyzed the appropriate case law under the Vital Statistics Act, as well as the Charter. The issue is a large social one, however, and it is possible that it may be appealed. A decision from the Ontario Court of Appeal on this issue would be more determinative than a decision of the Superior Court.

You can find this case at the following address:

http://www.canlii.org/on/cas/onsc/2006/2006onsc13267.html

THE OFFICE OF THE CHILDREN'S LAWYER - WHAT DOES IT DO?

One of the things a judge is required by statute to investigate in a custody case is the wishes of the children “insofar as they can be reasonable ascertained”.

As a general rule, children do not testify in custody proceedings. There is no rule that says they can’t testify, but most judges have taken the view that allowing children to testify would leave them open to manipulation by their parents. Many judges also think that testifying in a courtroom, with both parents also present, would cause children unnecessary emotional trauma. As a result, the law in Ontario has evolved to find ways to put children’s wishes before the court without the need of the children having to come in and testify.

One of the ways that children’s wishes are put forward is through a lawyer appointed for the children of a family whose parents are disputing custody in court. The Ontario government runs a program through the Ministry of the Attorney General for this purpose (The Office of the Children’s Lawyer). The OCL may appoint a lawyer to represent children in appropriate cases, without cost to the family. A lawyer representing the children will meet with the children and with both parents, and will advise the parents and the judge what the children’s wishes are.

Sometimes, if the conflict is really serious, or if there are mental health issues in the family, the OCL will appoint a social worker to investigate both homes and provide a written report to the court, with a recommendation as to what should happen regarding custody of or access to the children.

Here is the website for the OCL, which provides more information on the program:

Office of the Children's Lawyer

Keep in mind that the OCL only becomes involved if the parents have gone to court to dispute custody. Without a court action, the OCL will not becomes involved.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)

WHAT IS AN ASSET REALLY WORTH?

When assets are valued for the purposes of equalizing them upon marriage breakdown, they are almost always assigned a “gross” value, and a “net” value. The gross value is usually the sale price of the asset at fair market value. This figure is often provided by a qualified appraiser. The net value is the value of the asset that the owner would actually get to keep. On the Net Family Property Statement, these two values are usually noted by entering the gross value of the asset, and then deducting the costs of disposition of the asset as a separate entry to arrive at the net value of the asset to the owner.

For example, if you sell a house, you don’t get to keep all of the money from the sale. The real estate agent will take a commission, and you will pay legal fees to the lawyer acting on the sale. Accordingly, the “value” of the house to you is the amount the buyer paid minus the real estate commissions and legal fees. In the family law context, a house is therefore entered into the Net Family Property Statement at its full value, and a separate entry is usually shown indicating what the anticipated commissions and legal fees will be. If the house is almost certainly going to be sold, the full real estate commissions and legal fees will usually be deducted from the value. If the house is not likely to be sold, commissions and legal fees will be deducted at a reduced rate to reflect the fact that the house may not be sold for a long time. Some deduction will almost always be made, however, because at some point, all houses are transferred, either by sale, or upon death of the owner, and costs of sale will be applied at that time.

Another common example is RRSP’s. The value of a registered retirement savings plan is the market value minus the income tax that will be deducted from it when it is collapsed. Pensions are treated in the same way (although pensions have their own set of valuation issues which you should discuss with me or any lawyer representing you).

Non-registered investments create different tax problems. It is hard to say what the costs of disposing of these assets are, because they are taxed as capital gain if they have gone up in value, or eligible for a tax write-off as a capital loss if they have gone down in value. You will probably need the assistance of a financial advisor or accountant to help arrive at the proper treatment of this kind of asset.

In short, many assets are subject to “costs of sale” or “disposition costs”, and these costs are usually deducted from the value of the asset for equalization purposes.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)

The Matrimonial Home in Ontario

FAQ REGARDING THE MATRIMONIAL HOME

My spouse and I are married, and are splitting up. The matrimonial home is registered in my name alone. Because the house is registered to me alone, can I make my spouse leave the home?

Under the Ontario Family Law Act, the matrimonial home has special status, and is treated differently than other assets owned by married couples.

In Ontario, assets are equalized when a marriage breaks down (see my FAQ "Property Issues and Filling out Financial Statements"). The ownership of the assets doesn’t change, and the right to possess the assets ordinarily goes to the spouse who owns them. For example, if you own a car, and your marriage breaks down, you still own the car after the breakdown of the marriage, and as long as your name is the only one on the permit, you are the only person allowed to possess the car.

The matrimonial home is treated as an exception to this rule under the FLA. No matter whose name is on the Transfer/Deed to the matrimonial home, BOTH PARTIES HAVE A RIGHT TO POSSESS THE HOME UPON MARRIAGE BREAKDOWN.

If the parties agree that one spouse should live in the home exclusively, they can sign a separation agreement granting that spouse exclusive possession. This means that the other spouse is no longer allowed to enter the home without the permission of the spouse in possession.

If the parties cannot agree which one should live in the home, an application can be made to Family Court for an order for exclusive possession pursuant to s. 24 of the Family Law Act. These orders are not easy to get. The court will have to be satisfied that it is in the children’s best interests that one of the parties be excluded, among other things. In general, there must be a case involving high conflict, domestic abuse, substance abuse, abuse of the children, or similar extreme facts before a judge will consider excluding one spouse from the matrimonial home.

My common law partner and I have been living together for 15 years. The house is in his name. I’m a half owner of it now, right?

WRONG. First of all, under the legislation, only married people can have a matrimonial home. If you never married, you have no "matrimonial home".

This means that upon breakdown of the common law relationship, you have no right to possess a home you don’t own. More importantly, it means that you have no automatic right to claim any share of the home as an owner, "half" or otherwise.

Unmarried common law couples can always ask the court for an order that they should own a share of the home on the basis that they contributed money or money’s worth to the home (resulting trust), or that they have done work in the family setting that "unjustly enriched" the spouse who owns the home, and that the non-titled spouse should be compensated by being given a share of the home. These kinds of claims are highly fact-driven, which makes them expensive to take to court. The outcome is also uncertain in most cases.

Unmarried couples can also execute an agreement(a cohabitation agreement) that says what they want to do about their family residence if their relationship breaks down (s. 53 of the FLA). They can provide for a division of the home’s value, and they can say who will live in it, and for how long.

The lack of a legislative right to possession of the family residence for unmarried cohabitatants is an issue that remains unaddressed in our current provincial legislation. With a growing proportion of couples choosing to live common law, the issue really needs to be given some thought by the provincial government.

My wife and I are married and are splitting up. I owned the matrimonial home on the date of marriage, and had about $50,000 equity in it. Can I subtract that amount from my Net Family Property so I don’t have to share the pre-marriage value of the home with my wife?

NO. If this were any other asset but the matrimonial home, the answer would be yes (see my Post "Property Issues and Filling Out Financial Statements").

The matrimonial home is defined as the home the spouses are living in on the date of separation. If you brought the home into the marriage, and you and your spouse are still living in it on the date of separation, it is a "matrimonial home" under the legislation, and you cannot exclude its pre-marriage value from equalization.

If, however, you brought the home into the marriage, sold it, and put all of the proceeds into a new home, which you are living in with your spouse on the date of separation, the new home will be the matrimonial home, and the old home, the one you brought into the marriage and sold, will have lost its status as a matrimonial home. You can, in this situation, deduct the pre-marriage value of the home you brought into the marriage.

My husband and I have a cottage and a home in the city. Which one is our matrimonial home?

Both homes may be matrimonial homes. It is possible to have more than one matrimonial home under the legislation.

If you and your spouse customarily lived in the city home in the winter, and the cottage in the summer during the marriage, then both homes may qualify as matrimonial homes. This will be so no matter which of the two homes you and your spouse are actually occupying on the date of separation.

But I inherited the cottage during our marriage! Can’t I exclude it from my Net Family Property?

Not if it is a matrimonial home. Unlike other assets, matrimonial homes cannot be deducted as pre-marriage assets, nor can they be excluded as gifts from third parties given during the marriage.

I want to make sure I don’t have to share the value of the matrimonial home with my spouse. How can I do that?

You and your spouse can sign a domestic agreement either before or during your marriage which allows you to keep the value of the home to yourself. Some couples decide to share part of the value with their spouses in their agreements, to compensate the spouse who is not on title for contributions to the home. But in your agreement with your spouse, you can make any decision you and your spouse want to make about the value of the matrimonial home. If the agreement is made before or during the marriage, any provision in a domestic agreement in which a spouse gives up the right to possess the home is unenforceable. Spouses can (and frequently do) give up the right to possess a matrimonial home in a separation agreement as part of a global settlement.

Can my spouse and I just do an agreement ourselves?

Please see my Post regarding Home-Made Separation Agreements. You can - but there are a number of formal requirements to make the agreement enforceable. It is almost never a good idea to create on your own a document that has the potential for expensive and far-reaching consequences. Each of you should retain a separate lawyer to review what you are trying to accomplish in the agreement, and to draft it for you.

Dealing with issues related to the matrimonial home or family residence is complicated. You should consult a lawyer before signing any documents, or making any commitments related to your home and your rights to it.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)

E-mail me!

PROCEDURAL OPTIONS FOR SETTLING

Separated couples have several options available to them for trying to work out a settlement of custody, support and property issues. Here is a summary of the main ones:

Mediation: This is an inexpensive option. In many jurisdictions in Ontario you can use a local government funded mediation facility. You pay the mediator based on your incomes, but it is still much cheaper than paying for lawyer time. Some couples retain and pay privately for a professional mediator. This is more expensive, but often highly effective if there are substantial property issues involved. In either case, you and your spouse meet with a mediator to discuss your options, and try to come to a settlement. Once you have a settlement, the mediator usually sends the lawyers a memorandum of understanding which sets out the principles for your agreement. You then review the memo with your respective lawyers, and a separation agreement is drawn up by one of the lawyers. In a case where there are some pension and property issues, you may want to consider having mediation with counsel present. This is something that can be arranged easily, and it is often very successful. Here is a link to Limestone Mediation in Kingston, Ontario, where I practice:

Limestone Mediation

Collaborative Family Law: This is similar to mediation, except that both counsel and the parties meet together without a mediator in a series of four-way meetings. The meetings have an agenda, and “homework” is assigned between meetings (such as gathering information, or having assets valued). This route is very successful in many cases, too. The advantages are that this process is comfortable and friendly. The one potential disadvantage is that if you do not settle in CFL, and have to go to court, neither of you can continue to retain the lawyer you used for the CFL process. This is to encourage you both to commit to the process, and to work toward a settlement. Here is a link to the Frontenac Law Association. You will find on it a further link to the Kingston Collaborative Family Law Association:

http://www.cfla.on.ca/

Negotiation through counsel: If your spouse retains reasonable counsel, it is possible that we can negotiate a separation agreement through correspondence. If you choose this route, you need to work on strict timelines, to avoid the matter dragging on too long without a resolution. This can be an expensive option if things don’t move along at a reasonable pace. If both parties have effective, settlement-minded counsel, it can be a quick and relatively inexpensive way to resolve the issues. If one party retains counsel who procrastinates, or who is argumentative or litigation minded, this option obviously becomes less likely to lead to settlement.

Family Court: You can bring an application in Family Court - in other words, you can sue your spouse. This is the most expensive, time-consuming, cumbersome and emotionally draining of all resolution options. It is not one you want to resort to unless there is no hope of negotiating a settlement. If, however, it becomes apparent that there is little hope of a reasonable negotiated settlement, it may be the best option for you to choose. If your spouse is really uncooperative you may waste a lot of money trying to negotiate a settlement, yet still have to proceed to court anyway. Suing may actually be more cost-effective in such a situation.

E-mail me!

Spousal Support Advisory Guidelines

In early 2005, the federal government published draft spousal support guidelines (“Spousal Support Advisory Guidelines”, or SSAG). The SSAG are not mandatory. They are meant simply as a guideline to lawyers and judges when attempting to resolve the issue of spousal support.

The SSAG assume that in a long marriage (or common law relationship) incomes will be approximately equalized, and that in a short marriage or relationship, the amount of support and the duration will be reduced. This is not always the result in court. The result may depend on other factors not addressed by the SSAG, such as the property equalization, or the health of each of the partners. Nonetheless, the SSAG have become a useful guide to possible outcomes in spousal support claims.

I admit that when they first came out, the traditional legal theorist in me was dismayed. The SSAG were unseemly - they looked like a way to inject new law into existing case law, without the benefit of parliamentary discussion, or judicial consideration.

I have had to retract my initial cynicism. The SSAG are very useful to family law practitioners and clients alike. For years, I could not tell a client with any certainty what she might expect to receive, or what he might expect to pay, in spousal support. Negotiations were often protracted, because the outcome wasn't certain. Anyone could be right, which meant both lawyers were worried about negligence claims, and both clients paid more than they should have to resolve the issue.

The SSAG have been with us since March, 2005. In that time, I have used them almost daily to give clients a rough projection of where the negotiations will begin if spousal support is an issue. Using the DivorceMate software, it takes me a few moments only to produce a professional and simple set of calculations.

The SSAG are not the final answer in many cases in which spousal support is an issue, but they are a place to start, whether the matter is in negotiation, or whether it is being litigated. Most judges I have encountered are happy to see the calculations as part of my argument, and in some reported decisions, judges in Ontario and other provinces have commented favourably on the helpful nature of the SSAG.

Certainty is a useful commodity in family law. The SSAG provide some predictability in a field where there was none, and for that reason, among many others, they are extremely useful.


E-mail me!

Are Home-Made Separation Agreements Binding?

HOW TO DO YOUR OWN BRAIN SURGERY - OTHERWISE ENTITLED “ARE HOME MADE SEPARATION AGREEMENTS BINDING?”

The short answer is “yes”, agreements drafted by the parties to a separation themselves can be binding. Section 55(1) of the Ontario Family Law Act sets out the minimum formal requirements for domestic agreements:

“a domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.”

The term “domestic agreement” is a comprehensive term, which includes separation agreements, cohabitation agreements, and marriage agreements. Married people, or cohabitees, are free to draft their own cohabitation or marriage agreements, setting out certain terms of their relationship. The agreements can cover spousal support, child support, property issues and “the right to direct the education and moral training of their children, but not the right to custody of or access to their children”, and “any other matter in the settlement of their affairs.” [emphasis supplied]. A separation (as opposed to a cohabitation or marriage agreement) agreement can, and almost always does, deal with custody of or access to children.

There are four other things that are unenforceable if included in a domestic agreement:

• married partners are not permitted to sign away their right to possession of the matrimonial home (s. 52(2)) in a cohabitation or marriage agreement, although they can do it in a separation agreement;

• a cohabitation or marriage agreement regarding the “education, moral training, custody of or access to” the children of the relationship may be disregarded if the agreement is not in the children’s best interests;

• an agreement which falls short of the provisions of the Child Support Guidelines regarding the provision of child support may be set aside if it is unreasonable, having regard to the CSG, as well as to any other provision relating to support of the children in the agreement;

• a provision requiring a partner to remain chaste is unenforceable, but provisions restricting support in the event of cohabitation with, or marriage to, a new partner, are still enforceable.

A domestic agreement, whether drafted by the parties themselves, or by a lawyer, can be set aside under certain circumstances (s. 56(4)):

• if a party failed to disclose significant assets or debts;

• if a party did not understand the nature of consequences of the domestic contract; or

• otherwise in accordance with the law of contract.

Naturally, it is the “otherwise in accordance with the law of contract” part of s. 56(4) which attracts the most litigation. Most folks know what their partners have in the way of assets and liabilities, and most people understand the terms of the agreement. A party wanting to set aside an agreement may try, therefore, to have the agreement aside for fraud, mistake, undue influence or unconscionability, which are the main deal-breakers in contract law.

The setting aside of agreements will be the subject of an upcoming post. Let’s just say for now that people who draft their own agreements run the following risks:

• the agreement may be unenforceable because it doesn’t meet the formal requirements (has not been signed and witnessed);

• the agreement may be set aside pursuant to the provisions of s. 56(4); or

• the agreement may be a very bad deal, but may be enforceable anyway, because it is not subject to being set aside pursuant to the provisions of s. 56(4) of the Family Law Act.

In short, separation agreements are complex legal documents. People do create them on their own, and sometimes fairly and successfully. However, as you can see, the pitfalls are huge, and can be costly. If you draft your own agreement and it isn’t enforceable (or it is enforceable, but you want out of it), you may be stuck with the consequences. If you retain a lawyer to draft the agreement, the lawyer’s job is to avoid the pitfalls for you. If s/he fails in that regard, you have recourse to the lawyer’s errors and omissions insurance plan to cover any negligent drafting.

Custody - Joint or Sole?

The concept of “custody” is made up of two components: time sharing; and decision making.

If you have joint custody of your children, it means that you and your ex-spouse share decision making. It doesn’t mean that you necessarily share the children’s time equally.

It also doesn’t mean that you share each and every decision about the children’s lives. It would be cumbersome to have to agree on all aspects of the children’s social lives, for example. In most families, joint custody means that the parents make major decisions together, such as where the children will attend school; what activities they will participate in; what health care is necessary for them and so on. In the best circumstances, it should also include (but doesn’t always) a basic agreement on parenting values, such as bedtimes, consequences for inappropriate behaviour, and limit setting in general. The smaller, day to day issues are usually decided by the parent with whom the children are residing at the time such an issue arises. Smaller issues would include attending social events with other children (such as birthday parties or playdates), or getting haircuts, and things of that nature.

By contrast, a parent who has “sole custody” will usually make all major decisions in consultation with the access parent, but the access parent’s decision making power is significantly reduced. The access parent may have to take the matter back to court if s/he disagrees with a decision made by the custodial parent. The court will tend to support the decisions made by the custodial parent, unless the decisions are clearly not in the children’s best interests.

Having sole custody, however, does not impart an unquestioned right to leave the jurisdiction. If a sole custodial parent wants to leave to move a significant distance, and therefore upset the access schedule, s/he will ordinarily have to take the matter back to court to get the agreement or order varied if the access parent disagrees. However, a custodial parent’s wishes will be taken very seriously by the courts, and the move will be assessed by considering what is in the children’s best interests. In most cases, the custodial parent will be allowed to move if the move is for supportable reasons, on the condition that a fair arrangement can be made regarding on-going contact with the access parent.

Sometimes when parents share joint custody, one parent is noted as the “primary parent”. Although the parties share decision making, the children are actually spending most of their time with the primary parent. If the primary parent wants to move and take the children, but the other parent disagrees, the primary parent will almost certainly have to ask the court for an order permitting the move, whether or not the access schedule is going to be upset. Much will depend on how the joint custody agreement is worded. In short, joint custody gives the “non-primary” parent a little more say in whether the children will leave the jurisdiction, but the distinction is pretty fine.

In cases where the children share their time equally or almost equally between their parents, it will not be easy for either parent to leave the jurisdiction and take the children over the objections of the other, particularly if the move will mean a change of school for the children. The courts value stability for children. Changes in school are only approved if the change is unavoidable. If one parent is remaining in the jurisdiction where the children go to school, and that parent has had the children in his/her care half time, or something close to it, the children will almost certainly be ordered to remain at their existing school if the matter comes before a judge. The court will consider visiting arrangements for the parent who is moving. These visiting arrangements often include a larger share of summer school vacation periods to make up for the interruption in regular contact created by the move.

It is almost never a good idea to move out of the jurisdiction with the children without notice to the other parent. If you are contemplating a move, or if you want to know more about your parental rights and obligations, please contact me, or the lawyer of your choice, before you make any firm plans.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)
E-mail me!

Ontario Family Court Litigation - what to expect

FAQ’S REGARDING FAMILY COURT


1. What does “going to court” mean?

It means you are commencing a lawsuit against your spouse. You are asking the court to determine the issues between you, most often because you and your spouse have been unable to solve them yourselves.

The court will make a ruling on all issues if you and your spouse cannot settle them.

2. What is a Case Conference?

The Family Court offers many opportunities for settlement along the route to a trial. A Case Conference is the first such opportunity, and will most likely be the first appearance you have in front of a judge.

You and your spouse must both file a Case Conference Memorandum one week ahead of the Conference. I will help you draft yours, and we will update your financial statement if need be.

The judge will read both memoranda ahead of time. You and your spouse are required to attend the Case Conference, as are both lawyers. The judge may make recommendations at the Conference as to potential settlement. He or she may also make an order requiring disclosure of documents if either one of you has not yet completed disclosing all documents such as tax returns, bank statement and the like. Finally, the Case Conference judge can make consent orders if you and your spouse come to an agreement about part or all of the file.



3. What is a motion?

After the Case Conference, either party is free to bring a motion. A motion is a request for interim relief, which means that the court may make an order “for the time being”. Interim orders are in force unless and until they are amended, or until the completion of the entire file by trial, or by other settlement. You don’t necessarily have to be present at the hearing of the motion, but I advise all of my clients to come to motions if at all possible. It is very important that you hear what I said for you, and what the judge says about your request to the court.

A motion is commenced by a Notice of Motion and supporting evidence. All evidence on motions is almost always in writing, in the form of a sworn affidavit. If you have to bring a motion, you and I will work on the documents together. You do not have to testify at a motion.

Sometimes it is necessary to bring a motion to compel the other party to produce documents, or to pay support, or to change the timesharing arrangement for the children.

If the judge agrees with you, he or she will make an order for the relief you are seeking. If the court does not agree with you, your motion will be dismissed.

If you lose a motion, and the court dismisses it, you are almost always liable for the winning side’s legal fees. This is called “paying costs”. It means that in addition to paying me, you will be required to pay the other party’s lawyer, too. As a result, I will only advise you to bring a motion if it is absolutely necessary, and if the chances of winning are high. I can’t guarantee that you will win your motion, even if in my opinion you should. I can only advise you, based on my experience, what the anticipated outcome will be, and you will have to decide if it is worth the risk.

A court order made after a motion is just as binding as a court order made after a trial.



4. What is a settlement conference?

A settlement conference is the next opportunity you will have to settle the claim. It is similar to a Case Conference, and again, you will have to file a Memorandum, which I will help you complete.

You must also update your financial statement, and you must file an Offer to Settle the matter at that point. The offer is your “best position” on settling all matters with your spouse.

Matters do frequently settle at this stage in the litigation. If you settle at a settlement conference, you do not have to appear at a trial, and you will save yourself considerable legal costs.

5. Why do I have to make an offer?

You must make an offer at the Settlement Conference. You can, and should, make offers to settle at other points in the litigation as well. You and I will decide what goes in your offer, and whether you want to make more than one.

If your matter goes to trial, the offers to settle are very important. Just as in a motion, the losing party must pay a portion of the winning party’s costs. This can be very expensive. Typical costs orders after a trial can be in the range of $10,000 or more for a trial that spans a few days of court time. If you have made an offer to settle the matter that is rejected, and the offer is at least as good as what the court eventually ordered at trial, the other party will most likely be ordered to pay your costs, even if you lose the trial. This is why it is very important that you make reasonable offers to settle at every stage of the proceeding.

6. What is involved in a trial?

Trials can last half a day, or many days. It all depends on the number of issues the court is being asked to resolve. It is possible that you and your spouse will resolve some issues, but not others. This will mean that you have a trial only on the issues you have not resolved.

The Applicant presents his or her case first. The opposing lawyer will cross-examine every witness the Applicant presents. Then the Respondent presents his or her witnesses, and the Applicant’s lawyer will cross-examine each one. You and the other party will both testify, too, and you will each be cross-examined.

Once all of the evidence has been presented, each lawyer summarizes the facts and the law for the judge, and makes argument on behalf of his or her client. The judge then makes a decision.

Sometimes judges don’t make their decisions immediately. They may reserve their decision, and give it to you up to six months after the trial.

Once the decision is made, the winning side is responsible for drafting up the order for the judge to sign. If the order is complicated, I will review it with you first before approving it. If the order is straightforward, I will just compare the draft to the judge’s decision to make sure it is correct, and will approve it for you.

If you were ordered to pay costs, you must do so as soon as possible. If you don’t, the other party can take out a writ of execution, and garnish your wages, or take other steps to enforce payment of costs.

Please let me know if you have any questions regarding family court litigation. If you have received this sheet from me, chances are you have either commenced your own application, or you have been served with one commenced by your spouse. Lawsuits are expensive and time-consuming. If you are going to have to pay a lot of money to be involved in one, you owe it to yourself to stay informed as to how they are conducted. I am pleased to answer your questions as promptly as possible.


Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)
mary-jo.maur@bellnet.ca

FAQ regarding property issues

PROPERTY ISSUES AND FILLING OUT FINANCIAL STATEMENTS

In General

Many people assume that in Ontario, matrimonial property issues are resolved with a couple getting "50/50" of the total property the parties own. Many people also assume that the equalization of property scheme applies to common law couples as well as married people.
Neither is true. Ontario has an equalization of property scheme, which is different from actually dividing up the property equally between the parties. IT APPLIES ONLY TO MARRIED PEOPLE (see my FAQ regarding common law relationships).

In Ontario, property equalization is figured out by having each spouse disclose all assets and debts to come up with a net worth figure (called your Net Family Property). The spouse with the higher Net Family Property (or NFP), pays the spouse with the lower one an equalization payment equal to one half the difference between the two NFP’s. For example, if you have an NFP of $100,000, and your spouse has an NFP of $50,000, you would owe your spouse one-half the difference between $50,000 and $100,000 - or $25,000, to equalize your NFP’s. As you can see, having a low NFP will reduce what you owe your spouse, or may increase what is owed to you. You cannot go below zero with your NFP. If your NFP is a negative number, you will have to put "zero" on your financial statement.

The equalization scheme means that you usually get to keep whatever is in your name, and your spouse keeps whatever is in his or her name, including pension plans and RRSP’s, as long as you can pay your spouse the equalization payment owing. If you can’t, you may have to transfer assets, such as RRSP’s, to your spouse to make up the equalization owing. Joint assets are either sold, and the proceeds divided, or one spouse buys out the other to keep the joint asset.


Exclusions and Deductions

Pre-marriage property:

There are some exclusions and deductions to your NFP that are very important. You are allowed to deduct the value of all pre-marriage property, with the exception of the matrimonial home. This means that if you owned an asset, such as an investment, or real estate other than the matrimonial home, or even household furnishings, and you can establish a value as of the date of your marriage, you can deduct those values from your Net Family Property. You don’t have to have the item at the date of your separation. You just have to remember what you owned on the date of your marriage, and be able to establish a value for it.

Debts

You can deduct the value of any debts you owed as of the date of your separation. This includes credit cards, lines of credit, mortgages, private loans, and the like. It just has to be money you owed on the date of your separation, and you need to be able to prove you owed it. Loans from your parents or other family members may or may not qualify as deductions, depending on the documents you may have signed with your parents at the time the loan was given. Parental loans are assumed to be gifts unless you can establish otherwise.

Gifts and inheritances

If you received a gift from any third party (that means anyone other than your spouse) during your marriage, you can deduct it in its entirety from your NFP - UNLESS YOU USED THE MONEY TO PURCHASE THE MATRIMONIAL HOME OR PAY OFF A MORTGAGE AGAINST IT, OR TO DO ANY RENOVATIONS RELATED TO THE HOME. If you did, you can’t deduct the gift. Another exception is gifts from third parties that are put into the joint names of the spouses. For example, if your mother gives you $30,000, and you put it into your name and your spouse’s name jointly in a bank account, you can only deduct your half, and not the entire gift.

Insurance payments for personal injury

If you were injured, and received damages for your injury (most often through an insurance policy), you can deduct this money provided you have not used it towards the acquisition or maintenance of the matrimonial home.

Pre-marriage debt

If on the date of your marriage, you had a negative net worth (you owed more money than the assets you owned), and at the end of your marriage, on the separation date, you own more than you owe, the pre-marriage debt will act to increase your NFP. The theory is that if you started the marriage in the red, and are now in the black, you have profited by having your debt retired during the marriage.

The Matrimonial Home

The Ontario Family Law Act defines the matrimonial home as being the residence (or residences) you are living in at the date of separation as a married couple. If you lived in one home, sold it, and purchased a second home, the previous home is not a matrimonial home. Only the home you were living in on the separation date is your matrimonial home.
It is possible to have more than one matrimonial home. The family cottage may be a matrimonial home, too, for example, if it is used seasonally by the couple.
It is important to know whether your residence is a matrimonial home, because such homes are treated differently from other property under the Family Law Act.
Matrimonial homes cannot be excluded from your NFP as pre-marriage assets, even if one party was on title alone at the date of marriage.

Both parties have an equal right to possess the matrimonial home (although it may be that only one party owns it).

You cannot sell or mortgage the matrimonial home without the written consent of your spouse.
Inherited money that is used to buy a matrimonial home, to pay down the mortgage, or to renovate cannot be excluded from your NFP.


Filling out your financial statement

Whether you are going to court or not, you will probably be filling out a sworn financial statement in order to settle your affairs with your spouse.

A sworn document tells the world that you have reviewed the document, and that to the best of your knowledge, the facts in it are true. It places a very high standard of truth telling on you. You can be cross-examined on the contents of the document if the matter goes to court, and the court will be entitled to make adverse findings against you if you have not told the truth in the document.

The financial statement is divided into two parts: income and expenses and property. In most cases, you need to fill out both parts.

Income and expenses:

You need to provide me with your tax returns (and Notices of Assessment if at all possible) for the past three years, and a recent paystub, as well as some proof of your income to the date of the statement if your paystub does not show year to date income. If you have a new partner, and spousal support is an issue, then you may need to reveal what your new partner makes, and what proportion of the household expenses he or she pays, as well as how many children your partner has, as per the appropriate boxes on the financial statement.

Fill in your monthly expenses as best you can. Don’t bother to total them. I will do that for you. Make sure they are expenses that you actually pay, and not ones that a new partner or someone else pays for you. Be sure to include monthly debt payments in the appropriate line. Be as accurate as you can.

Property and debt:

This portion of the statement is divided into three columnms - date of marriage, valuation date, and statement date.

The date of marriage asks for the value of your assets or debts on the date of marriage. The valuation date asks for the value of your assets and debts as of the date of separation. The statement date asks for the value of your assets and debts as of the date you are writing the statement.

Put in the total value of the matrimonial home if you own it alone, put in half the value if you own it jointly with your spouse or another person, and put in nothing if you don’t own it at all.
You and I will discuss how specific you need to be in detailing the value of household goods. Often, if the parties have already agreed on the division of these, it is not necessary to include a detailed value for them. You should put in the value of your vehicles, boats and other like items no matter what, however.

If you have an actuarial appraisal done for your pension plan, you can include its value. Pensions are often big assets, and merit special consideration. You and I will discuss your pension value in some detail. Be sure to include a value for all of your RRSP’s, money in the bank,
and other like assets in the appropriate box. Remember that stocks and bonds (including Canada Savings Bonds) are assets, and you must include them on your statement.

If your life insurance has a cash surrender value, include that in the appropriate box under life insurance. If your policy is term insurance, just include the "face value", and indicate who the owner and beneficiaries are.

Some assets may be difficult for you to place a specific value on (such as stock options, or real estate that has not been appraised). Give me as much information as you can about such assets, and then we will have to discuss whether to have them valued by an expert.

It is important that you complete your financial statement as accurately as you can. Please try to provide statements for all assets and debts wherever possible, including statements of your investments, credit card statements, and the like, as of the date of your separation.

MARY-JO MAUR
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7P 1Z4
mary-jo.maur@bellnet.ca

Living Common law versus Marriage

COMMON LAW AND MARRIED COUPLES - WHAT IS THE DIFFERENCE?

Many people are under the impression that if you are living “common law” that you eventually acquire the same rights as married couples.

I have heard, over the years I have practiced, various timelines require to “prove common law”. Some people think the you have to live together for six months; others for a year. But in every case, the person calling me for free legal advice usually is very firm with me that common law partners have the same rights upon marriage breakdown as married partners.

This is not so - it is really not so.

In Ontario, the Family Law Act distinguishes between common law and married couples for the purposes of property equalization. Married people are entitled to property equalization. Common law couples are not.

Under the legislation, common law partners can ask for spousal support (s. 29), but NOT PROPERTY EQUALIZATION. In order to ask for spousal support, a common law couple must have been living together for three years or more, OR they must have a child together, and have been living together in a relationship of “some permanence”.

This leaves common law couples in a very difficult position on breakdown of the relationship. If the family residence, for example, is owned by one spouse, and the other is not on title, the spouse that owns the house can summarily kick the non-titled spouse out. The non-titled spouse has no recourse to the sections of the FLA regarding possession of the matrimonial home. This is because unmarried couples do not have “matrimonial homes”. They may have family residences, but they don’t have matrimonial homes as defined by the FLA. They cannot have them. Only married people can have matrimonial homes.

This is not to say that common law partners have no remedies. They may have trust claims against the other spouse. For example, if one spouse has contributed money or money’s worth to acquisition of an asset owned by the other, s/he may have a claim to a resulting trust. As a further example, if one spouse has made it possible for the other to acquire assets, perhaps by raising the children, or by doing unpaid farm work or (very potentially, and not firmly defined in Canadian law) unpaid housework, s/he may have a constructive trust claim. These claims are always possible, but they are difficult to make out. They require extensive proof of money having changed hands, and lots of evidence about who did what on a daily basis within the relationship. They are expensive court applications, with no guarantee of success for the applicant.

Contrast this with what married partners are entitled to on marriage breakdown: married partners are entitled to an automatic equalization of Net Family Property (see my FAQ on property issues) unless one of them manages to convince the court that a variation of the equalization is appropriate pursuant to s. 5(6) of the FLA. Married partners do not need to prove that they contributed to the acquisition of an asset in any way, or that their unpaid house/farm work resulted in the unjust enrichment of the other spouse. They just have to prove they are married, and the equalization provisions of the FLA become applicable.

Variations of equalization pursuant to s. 5(6) are relatively rare. The applicant first has to show that an equalization pursuant to the legislation will be “unconscionable”. This is a fairly stringent legal test. It means a lot more than just “unfair” or “burdensome”. It means that the equalization as provided in the legislation has to be “shocking to the conscience” before the court will consider varying the equalization.

The Supreme Court of Canada in Nova Scotia v. Walsh made it clear that this distinction between married and unmarried partners is acceptable pursuant to the Canadian Charter of Rights and Freedoms. The court said that people who marry make a conscious choice to accept the responsibilities and rights of married people. Those who live together cannot be presumed to have made any such choice, according to the Supreme Court.

This is interesting, and challenging. In so many other areas of family law, if a thing looks like a duck, it is a duck. For example, if a man treats his (married or common law) wife’s children as his own, he is presumed to be standing in the place of parent, and he can be ordered to pay support for those children, no matter what he “decided” anywhere along the path of the relationship, or even after the relationship ended. There are excellent policy reasons for this approach, of course - but it suggests that what we “consciously decide” at the outset of a relationship will matter very little, unless it has been reduced to writing. This is not so when it comes to property equalization, however. A common law couple could decide between them at the beginning of their relationship that they will share everything. They could say this over and over to each other. When the relationship breaks down, there will be no automatic sharing, no matter what the parties said to one another. If one spouse reneges on the oral arrangement, there will be no sharing of assets - unless the other spouse wants to try to make a trust claim, with all its inherent difficulties. There will be no presumption that the couple meant to share everything, even though this is how they were living.

When Nova Scotia v. Walsh was rendered, I remembered thinking that the decision was absolutely essential to the same-sex decisions that were coming down the pipe at that point. The court could not say that unmarried cohabitants could acquire the same property rights as married couples without also having to say that there was no functional distinction between marriage and living together. If there is no functional distinction between marriage and living together, then same-sex couples could not easily claim that they are being discriminated against on the basis of sexual orientation if they were denied the right to marry.

In short, under Canadian law, marriage does carry far greater rights to property than living common law does. Rightly or wrongly, getting married grants couples the advantage (or the burden) of property equalization. Living together grants cohabitants very little, except the right to claim support against one another.

FAQ regarding divorce

Here is my FAQ regarding divorce:


FREQUENTLY ASKED QUESTIONS REGARDING SEPARATION AND DIVORCE

What is a "legal separation"?

There is really no such thing as a "legal separation". You are separated from your spouse from the moment you form the intention to end your marriage. There is no written document required to create a separation.
Ordinarily, the spouse wishing to end the marriage needs to communicate this fact to the other spouse to commence the separation. There are cases, however, in which the separation date is established earlier in time, by reviewing the behaviour of the parties. If you are living as roommates for a period of time before one party moves out, for example, it may be that you were actually living "separate and apart" before the date you obtained separate addresses.
If you or your spouse have formed the intention to end your marriage, and this intention has been communicated to the other spouse, you can identify yourself as separated for all purposes, no matter where you are living. There can be tax and other financial implications to doing so, however, and you should review these with a lawyer and maybe an accountant before you identify yourself as separated on any legal document.

Why does it matter when the separation date is?

The separation date is important for determining property issues. Under Ontario law, the separation date is called the "valuation date", and it is the date on which all of your property, and your spouse’s property, is valued for the purposes of figuring out if one spouse owes money to the other to settle the property issues. Some assets change value over time (such as investments and pension plans), and may be worth more or less on different dates. This is one reason it can be very important to establish exactly when the date of separation was.
The separation date is also important for determining the earliest date on which you can divorce.

How long do you have to be separated before you can get a divorce?

There are three ways you can get a divorce under Canadian law:

You can divorce if you are separated for one year or more with no hope of reconciliation;
You can obtain a divorce immediately if your spouse has committed adultery;
You can obtain a divorce immediately if you can establish that your spouse has treated you with mental or physical cruelty.

Most couples divorce on the basis that they have been separated for a year or more, even if one of them has committed adultery. It is less confrontational and embarrassing to proceed on grounds of one-year separation.

I just got served with divorce papers. Do I need to see a lawyer about them if I agree we should divorce?

You should call a lawyer to discuss what is in the divorce application, even if you are sure that all other issues have been settled.

If you have signed a separation agreement with your spouse, chances are that the divorce application is simple, and that you will not need to sign any documents or do anything to complete the divorce. You should still call a lawyer just to make sure you don’t have to appear in court. It is possible your spouse is asking for something in addition to the divorce itself, and you should review the entire document with a lawyer.

If you haven’t signed a separation agreement, however, and there are outstanding issues such as child custody, support or property equalization, you should definitely consult a lawyer as soon as you receive the documents.

How long after my divorce judgment is granted do I have to wait before I can get married again?

There is a thirty-day waiting period after the granting of the divorce judgment before you can obtain your divorce certificate. You need the divorce certificate if you want to remarry.
In exceptional cases, a divorce certificate can be obtained right away, without the thirty-day wait, but the spouse you are divorcing must consent to the granting of the early certificate.

Do I have to go to court to finalize all my issues with my spouse?

You don’t have to go to court if you and your spouse can come to an agreement on the issues of property, child support, custody and visitation and spousal support. You can confirm your agreement in writing in a formal separation agreement. Once you have done that, and your one year of separation is up, your divorce should proceed without opposition by your spouse.

What is a separation agreement anyway?

A separation agreement is a formal, legal document that you and your spouse sign. It usually settles all the issues between you relating to your children, the support of each other, and your property.

You can do one yourself - but it is not usually a good idea to try. A separation agreement is a very tricky document, and there are serious issues that you should have legal advice on before signing. You really should have a lawyer draft the agreement for you, and you should seek legal advice before you sign an agreement drafted by your spouse or his or her lawyer.

I want to go back to my maiden name. How do I do it?

In Ontario, a married woman can elect to be known by her husband’s last name, her own maiden name, or any combination of the two names, at any point in her marriage or separation, or within 90 days following the granting of the divorce. If you want to change your name more than 90 days following the granting of your divorce, you may have to undergo a formal change of name, which costs more than a simple election.

Call the Bureau of Vital Statistics for Ontario for more information. They will send you an application for to complete. Once they have received the application form and the fee, they will confirm your name change. The number for Vital Statistics appears under "Name Change" in the blue pages of your phone book. Alternatively, you can go to the vital statistics website at

Vital Statistics

If you still have your original birth certificate with your maiden name on it, you can try taking it to the Ministry of Transportation, and asking them to change your driver's licence to match your original birth certificate. With a birth certificate and a driver's licence, you can usually obtain new identification at your bank or any other institution in your maiden name. This plan may not work if your birth certificate is one of the old style, laminated ones. They sometimes not accepted as ID since 9/11. Still, it may be cheaper to apply for a replacement birth certificate than to apply for a complete change of name.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)
e-mail: mary-jo.maur@bellnet.ca

FAQ Regarding Support

This is an FAQ sheet that I give clients when they retain me with some general information about child and spousal support:

FAQ’S REGARDING CHILD AND SPOUSAL SUPPORT

How do you figure out how much child support is paid?

Child support is normally calculated by reference to the Child Support Guidelines, legislated by the federal and provincial governments. The Guidelines indicate the minimum child support payable based on the payor’s net taxable income (after deducting business expenses, but before taxes) and the number of children. For example, a payor earning $40,000 annually before taxes with two children will pay $570 per month in child support. If the children spend more than 40% of their time with the payor spouse, the amount of child support is usually reduced. The Guidelines are available on-line at the Federal Department of Justice webpage http://www.justice.gc.ca/en/ps/sup/pub/csworkbook.pdf

What about extra-curricular activities, clothing, dental and medical expenses? Does my ex have to contribute?

The Guidelines say that the parties have to share the cost of "extraordinary" expenses in proportion to their incomes in addition to child support. "Extraordinary" expenses are defined by the legislation and the case law to be things such as childcare, drug costs, dental bills (both regular and orthodontic), tutoring, or payment towards "high level" sports (such as rep hockey or competitive dance), although other expenses can sometimes qualify. Regular extra-curricular expenses are not usually included in the definition of "extraordinary". This means that if the children reside primarily with one parent, and that parent receives the Guideline amount of child support, extra-curricular expenses such as sports registration and equipment are paid for by the parent receiving the support with no contribution, unless the activity falls within the definition of "extraordinary". The same logic applies to clothing costs. Expenses that are defined as "extraordinary" are shared, but not necessarily 50/50. They are shared in proportion to your incomes. For example, if the child with whom the children live most of the time earns $30,000, and the payor spouse earns $60,000, the payor spouse will contribute 2/3 of the cost of extraordinary expenses, and the recipient spouse will pay 1/3. Since childcare is included as an extraordinary expense, the payor will contribute his or her share of the net cost of childcare, in addition to paying the Guideline amount of child support.
If you share your children 50/50, or close to it, with your ex, the sharing of extra-curricular and extraordinary expenses can be different than described here.

If I am paying child support, can I deduct it from my income?

Not any more. The federal government passed changes to the Divorce Act and Income Tax Act in 1997 which eliminated the tax deduction for child support. The payor cannot deduct it, and the recipient does not include it as income. If you have an order which pre-dates the changes in the legislation, you can still deduct the money, and your spouse will still have to include it, unless the agreement or order is amended.

How do you figure out how much spousal support is payable?

There are no guidelines for spousal support. If spousal support is payable, the amount is arrived at by considering the need of each party, and the means of the payor to pay. This means it is a very inexact process, and the amounts vary from case to case. There is a body of case law which helps lawyers estimate how much would be appropriate, and usually we refer to previous cases to see what makes sense in each file. The amount and duration of spousal support will depend on the incomes and expenses of the parties; the length of marriage; the obligations taken on by each of the parties for household and child care during the marriage; the health of the parties; and any other relevant factors.

Is spousal support deductible?

Spousal support is tax deductible for the payor, and must be included in the recipient’s income for tax purposes.
Figuring out how much, if any, child and/or spousal support is payable, and whether any extraordinary expenses are payable in addition to support, can be complicated. If you do not retain me, then you should review these issues with the lawyer of your choice. If you do retain me, we will review the implications for you together.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665
e-mail mary-jo.maur@bellnet.ca