Friday, April 29, 2005
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.
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)
Tuesday, April 12, 2005
PROPERTY ISSUES AND FILLING OUT FINANCIAL STATEMENTS
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
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.
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.
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.
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7P 1Z4
Monday, April 11, 2005
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.
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
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.
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)