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)