Archive for the ‘Separation’ Category

Exchanging Financial Disclosure Is Necessary for ANY Domestic Contract

January 23rd, 2012

There are many types of domestic contracts – marriage contracts, cohabitation agreements and separation agreements are the most common types. For all types of domestic contracts, the basic requirements of contract law are necessary: the agreement must be in writing, signed by both parties and witnessed.

Even when these basic contractual requirements are met, however, your domestic contract may not be enforceable in a court of law unless these additional rules have been followed:

1. Both parties fully understand the agreement and the consequences of signing the agreement. In order to properly understand the agreement, both parties must have received independent legal advice regarding the terms of the contract;

2. Full, complete and accurate financial disclosure has been exchanged between the parties; and,

3. The agreement itself or the circumstances arising from the agreement must not be unconscionable (meaning, the agreement is so unfair, it would “shock the conscience of the court”).

Any good family lawyer will tell you from the beginning that collecting and producing your financial disclosure to your spouse is not so much an option as it is a necessity. There is, frankly, little point in spending the time and money to negotiate, draft and execute a domestic contract that will hold little weight, if any, if one party in the future decides to challenge a term or terms of the agreement. It makes more sense, from an economic, as well as from an emotional standpoint, to spend the extra time and money to arrive at an air-tight agreement that you can lean on as you begin a fresh chapter in your life.

Is there a reason why I should stay in our home?

December 9th, 2011

Many people have heard that if they separate from their spouse they should try to stay in the matrimonial home. There are a lot of rumours as to why that is important. In reality, there are only two reasons for staying in the matrimonial home after separation. If those two reasons do not apply to your circumstances, there is no reason to stay. The two reasons for staying in the matrimonial home are 1) To remain a custodial parent of any children; and 2) For financial reasons if both parties are entitled to stay in the home.

The most important reason why a spouse should stay in the matrimonial home after separation relates to the children. Ontario Law says that if one spouse walks out leaving the children behind with the other spouse, the spouse with the children has de facto custody of the children. The “staying spouse” has the right to make all of the decisions of a custodial parent. If a spouse wants to be remain actively involved in making decisions for the children, that spouse must either stay in the matrimonial home, get the other spouse to agree in writing to joint custody, or get a court order that permits the leaving spouse to continue to make decisions for the children. The idea behind is that the parent who is caring for the children on a daily basis is probably the parent who is best suited to make the big decisions for the children. Once there is a regime that is firmly in place allowing one parent to “have custody” and make all the decisions, that situation can be very hard to change in court. Staying in the house also has the advantage of not requiring the parties to agree on parenting or access schedule. If both parents are still living to together in the same house with the children then it is easy to maintain an equal sharing of the children’s time. That equal sharing can be continued into a parenting plan when the parties do finally move into separate residences.

The second reason for staying in a matrimonial home is that both parties are legally entitled to stay in that home until there is an agreement or court order to the contrary. Neither married spouse could kick the other out of the matrimonial home – only the court can do that. A separated married spouse may find that it is too expensive to rent or buy a new home by him or herself. It can be far more cost effective for the separated spouses to continue to share the cost associated with living in the matrimonial home and both spouses continuing to live there.
Ontario Law does not give common-law spouses the right to stay in a family home after separation. The person who owns the home, or whose name is on the lease, gets to say who lives there, subject to landlord – tenant legislation if it applies.
There are no other reasons for staying in the matrimonial home with a spouse after separation. Leaving the matrimonial home does not mean that the leaving party has their name taken off title if the parties were joint tenants, or that the leaving spouse is giving up the right to ask to share the value of the equity in that home. Who leaves does not affect the amount or duration of spousal support. However, courts may not view that there is a need for support payments while the parties are living together in the same house and one or both of them are meeting their spouse and children’s needs. It is almost always cheaper to maintain one household instead of two, so that can be a practical reason for remaining in the home.

Another practical reason for remaining in the home with the kids is that the staying parent has control over where the children go and when. The staying parent can stand in the way of the leaving parent seeing the children. However, that is not behavioural that the law condones, in exceptional circumstances, nor that a judge will tolerate. The leaving parent will only be cut off from the children until the parties can get into court, or the staying parent follows the advice of a family lawyer.

Maintaining involvement with the children and needing a place to live are the reasons for staying in the home after separation. If neither of these is a consideration, then there is no reason to stay in the home.

When Should I Separate?

September 7th, 2011

Well, that depends on whether you fall within the “norm” of separating couples. As recently reported in The Globe and Mail[1] , September and January are the busiest months of the year for family lawyers. The family lawyers at DSF are not excluded from this trend. There are many speculations about why the start of a new school year and the start of a new calendar year lead people to take what is often the first step in separating from their spouse: consulting a family lawyer. Both September and January are months that mark change for many people. Both times of year symbolize the return to work and both symbolize the end of a period usually filled with a great deal (perhaps a great deal too much?!) of vacation time with one’s spouse. Nobody wants to kick off or interrupt their summer vacation or Christmas holidays with a letter to their spouse from their new lawyer. So people wait. They wait until now, when our phones are ringing off the hook.

Perhaps it does have to do with the fact that people often make changes and new resolutions for their futures in September and January. Or, perhaps it has to do with choosing to enjoy “one last summer” or “one last holiday season” with the family before taking active steps to separate. Either way you view it, our family law team is accustomed to and prepared for the shift in new clients that come to us this time of year. So please give us a call; we can handle the September separation movement and are here to help.

[1] http://www.theglobeandmail.com/life/relationships/love/divorce/hello-september-so-long-spouse/article2150593/

Once I have separated, do I have to go to court?

August 23rd, 2011

There are various paths you can take that do not involve going to court:

1. I recommend retaining a lawyer who practices exclusively in the area of family law. This lawyer will be more proficient with the provincial and federal family laws to negotiate a separation agreement for you in a manner that is both cost and time efficient.

2. Depending on the circumstances of your case, you may also participate in the collaborative law process. Most of the lawyers in the family law department have been trained as collaborative family law lawyers. The collaborative law process involves a written commitment to resolve your family law issues through a series of meetings between lawyers and parties and most importantly, involves a commitment to not go to court.

3. Once you and your partner have each retained separate lawyers and financial disclosure has been exchanged, negotiations regarding support, property, custody, access and other more complicated family law issues can take place.

4. Often negotiations take place through four-way meetings with the parties and their lawyers.

5. If negotiations break down, parties can enter into a mediation/arbitration agreement. This involves signing a contract to participate in mediation with an independent and neutral third party, who is often a senior family law lawyer and proficient in all areas of family law. Mediations can resolve issues in as little as half a day or can be continued over weeks.

6. Should mediation fail, the mediation/arbitration agreement will bind you to then participate in the arbitration process, usually with the mediator who then switches hats and becomes the arbitrator. Arbitrations are conducted the same way a trial is conducted and the award provided by the arbitrator is as binding as an order made by a judge at the conclusion of a trial. The benefit of proceeding by way of mediation/arbitration is that most files are resolved at the mediation stage and those that are not are often resolved much quicker in arbitration than trial.

7. The last way to resolve your family law dispute is through the court system. Before you are entitled to have your case heard at a trial, however, there are a series of steps you must participate in first. These steps include one or more case conferences, settlement conferences and trial management conferences. In addition, motions for temporary orders may be heard throughout the process. Because of the numerous steps involved before a case is heard at a trial, most cases do end up settling before they get to trial.

In summary, there are many alternate dispute resolution mechanisms that are available to you once you separate that do not involve going to court. I encourage you to speak with one of the family law lawyers at Devry Smith Frank to determine which route is best for you and your particular needs.