Your decisions for your children post-separation do not have to fit a "one-size-fits-all" mold. The best decisions are individualized - for each child and each family (even when no longer intact). Mediation gives you a chance to explore options for such decisions.

What is a matrimonial home - Ontario? - BlogBite (18)

In simplest terms, in Ontario and for family law purposes, a matrimonial home is the place where married spouses live together at the time of separation.

Here is more information you may find interesting/relevant:

1. A matrimonial home does not have to be owned by both spouses or even one of them. It can be a rental unit, for example, or a property owned by a corporation.

2. A family can have more than one matrimonial home. For example, a family cottage can, in the right circumstances, be the second matrimonial home.

3. The Family Law Act gives spouses special "possessory rights" in connection with a matrimonial home, no matter who actually owns the property.  A spouse cannot be deprived of such rights without consent or court order.

4. The value of matrimonial homes is divided between the parties on separation in a unique way, based on the provisions of the Family Law Act. Homes which are brought into the marriage and which are the matrimonial home at separation are also treated in a very specific way under this legislation (and unlike the division of other assets). Legal advice is crucial in this area.

5. Remember: The phrase "matrimonial home" applies only to situations where the spouses are married to each other (ie: are not common-law spouses).

UPDATE - January, 2018

We are pleased to let you know that our Etsy shop is now OPEN!

Visit it here: SELFREP SUPPORT

In the shop, we make available to you Manuals (E-books) on various topics, to assist you in representing yourself before Ontario's family law Courts.

So far, we have Manuals on preparing an effective:

• Financial Statement (both long-form and short-form); and
• Affidavit.

MORE MANUALS TO COME! 

"Can I change the locks?" - BlogBite

BlogBite (10)

Question: My husband and I are separated.  The atmosphere in our home is very uncomfortable and I do not think  it's good for the kids. I would like him "gone". Can I change the locks while he is at work?

Answer: No, the law does not permit you to do that. Married spouses have equal possessory rights to the matrimonial home, no matter who is actually on title (owns it). Those rights can only be set aside in one of two ways:

1. your spouse agrees to move out; or
2. the Court Orders your spouse to move out.

Changing the locks without his knowledge means taking away his possessory rights without his consent or Court Order.

If you feel that you must protect your own safety and the children's, changing the locks is not a solution to the problem - if safety is an issue, you MUST call the police.

Do you have more questions? contact us...

"I am separated and can't cope" - BlogBite

BlogBite (7)

Question: "I am separated and I can't cope. I am so devastated, I cannot even face dealing with all of the issues which I have to face, now that the relationship is over. What am I to do?"

Answer: For most people, separation results in a fundamental shift in everyday reality. Most people cope with it, over a period of time. The length of time it takes to normalize one's life after separation depends on a whole series of factors, most importantly - the individual himself or herself.

Here are some tips and suggestions:

1. Do not beat yourself up - being hard on yourself will make you feel even worse about the situation. Be kind to yourself and remember that a separation can be as devastating as a physical accident - your feelings and emotions have sustained a trauma - this time takes time to heal.

2. Help the healing process - even if you are incredibly hurt, it is important to take steps forward, little ones if necessary, but forward. Rely on your support network of friends and family. Share your grief with those close to you. Join a support network, online or in person. Seek help from professionals like doctors, therapists and counselors. You may also consider turning to someone who shares your faith for assistance - a rabbi, a pastor, a priest.

3. Do not bury your head in the sand - inertia does not advance your situation to a conclusion. Move forward by tackling the issues, at your pace. Get legal advice on the issues in your case, so that you are better equipped to make calm, rational, organized decisions about them.

..and if you have any questions, please contact us. We will do our best to help.

UPDATE - January, 2018

We are pleased to let you know that our Etsy shop is now OPEN!

Visit it here: SELFREP SUPPORT

In the shop, we make available to you Manuals (E-books) on various topics, to assist you in representing yourself before Ontario's family law Courts.

So far, we have Manuals on preparing an effective:

• Financial Statement (both long-form and short-form); and
• Affidavit.

MORE MANUALS TO COME! 

The Mindful Separation

Dealing with a separation is a lot like breathing badly - you take short, shallow breaths, sometimes they come fast and furious and yet, you never truly fill your lungs.  Poor breathing, just like a chaotic, toxic separation, exposes you to making decisions based on emotion rather than common sense and reason. None of this is helpful to you - more than likely, it will lead to poor outcomes for you and your children and, at the very least, prolong the process of tidying up all issues arising out of your separation.

At our offices, we encourage both our clients (and pass on the same message to the other side):

1.  To remain as calm as possible and try to separate emotion from decision-making. 

2. To be mindful of their circumstances, both "the good and the bad", and to practice self-acceptance and self-compassion.

3. To seek professional, counselling assistance if our client feels overwhelmed and unable to make reasoned decisions and choices based on legal advice.

4. To be mindful of their circumstances, both "the good and the bad", and to practice self-acceptance and self-compassion.

5. To rely on support networks, including those offered by family, friends and support-groups.

6. To be mindful of their circumstances, both "the good and the bad", and to practice self-acceptance and self-compassion.

7. In assessing the actions and positions of their separating spouse, to do the best possible (given the actual circumstances of the case) to limit judgment and emotion.  For many spouses, separation is a traumatic, sometimes life-altering event - we understand and accept that - the sooner our client is able to complete the steps required to finalize all issues arising out of a separation, the sooner they will be able to move on and heal.

(yes, we do realize we repeated the same point three times)

NOT EVERY FAMILY LAW CASE ENDS UP IN COURT  - you have a number of options on how to handle your separation, which do not involve Court. Call us to find out more about those options.

What is an uncontested divorce?

The answer to the question above depends on how "divorce" is defined.

If by divorce, we mean the steps of formally ending the parties' marriage by a Divorce Order, granted by the Court, then here, an uncontested divorce is one which is either:

(a) proceeding on the consent of both parties; or
(b) is requested by one party and not opposed by the other.

A divorce in such a case can proceed either at the request of one spouse or based on a joint Application made by both parties. Uncontested divorces are quite common - they involve primarily the completion of the required paperwork, its service on the other side, its filing with the Court and a Judge's signature.

If by divorce, we mean all of the issues arising out the separation of a couple (for example custody, child support, spousal support, etc.) then uncontested divorces in this instance are less common but they are still possible. There are couples who work out all the terms of their separation directly with each other and then one retains a lawyer to incorporate them into a separation agreement, for example. There are also situations where the agreement is reached in the context of mediation.

Not every separation results in an "all-out fight" between the spouses - if you are interested in finding out how to complete a sane separation and divorce, please contact us for more pointers.

When we hear: "I am in Court without a lawyer"....

I was recently interviewed by Advocate Daily about a very important and complex subject, namely, the ever-increasing number of unrepresented litigants in court, and in family court in particular.

Here is the article resulting from the interview....

Bench and bar must accommodate unrepresented litigants when possible

Dividing contents....

There are, believe it or not, couples who manage to divide the contents of their residence together, whether a home, a cottage or apartment, in a civilized, calm and organized way. It's not as uncommon as you think and it IS entirely possible.

For situations where that has not happened, contents can become a true battleground, with each party "staking" what they want and sometimes even saying they want "that" simply because the other spouse wants it as well. In those situations, you need a game plan, a method for addressing the problem.

Simply removing the items you want, without the other spouse knowing you will do so in advance, is never a good idea. It will cast a shadow over your actions and motivations, and if the matter ends up before a Judge, your spouse will surely advise him or her of what you have done, asking that unfavorable inferences be drawn from your actions.

Firs of all, what are contents? - they are "stuff" you and your spouse used together as part of your relationship. Stuff in your home, your cottage, your apartment. It is not the same as personal possessions. Your stamp collection is not part of contents and neither is her clothing or his shoes. The contents of your spouse's home-office desk are not part of contents - they belong to your spouse.

Also, contents are not necessarily things which only both spouses paid for. There are many situations in which only one spouse paid for all of the stuff in the house and this stuff is still "contents". If you are unsure, speak to a lawyer about this issue.

We believe that if you and your spouse cannot agree on how to divide contents, as a first step, each of you needs to make a list of ALL the contents of your residence. Then, on each list will be identified personal possessions and other items, such as gifts and inheritances, which do not form part of contents either (this is a very important point and if you have such items, it is vital that you speak to a lawyer for advice on how these items are dealt with and why). On your list, you can then identify which of the contents you are interested in having. You then exchange your lists. The items on which you and the other spouse agree are no longer contentious. Only those items which you both appear to want are.

For the items on which you cannot agree, there are a variety of approaches. Get legal advice on this point as one may be particularly suited to your case. There are also alternatives to creating lists, including marking contents with multi-colored stickies, valuing them all professionally and then dividing by value, or one spouse keeping all and the other spouse getting credit for one-half of the value.

We can say one thing with confidence - Courts do not like to get involved on the issue of contents and prefer that spouses deal with them themselves. If you are before a Judge dealing with contents, be prepared for a long and detailed consideration of the issue, which can be drawn-out and expensive. Try to avoid it if you can.

Tips for completing a Financial Statement (4) - Ontario

This is one in a series of our posts on this topic.

A Financial Statement is likely the most important document you will complete in a family law case.

We have never heard a client say "oh boy, I am looking forward to filling out this form" on receiving the blank draft but do not let the document scare you into inertia.

You will need to set aside quiet time to complete the document in draft, as best you can. If you get stuck, the trick is not to put the exercise aside and forget about it - the trick is to get motivated and get help, if necessary. This help may come from your lawyer and/or their Law Clerk (at a lower rate, we might add).

The key is to identify that you need help and to ask for it. All questions are reasonable - do not be afraid to ask. Remember that if you get stuck on an area of the form, that likely means the information is not straightforward - all the more reason your legal team should know about it and assist you in identifying it properly on the Financial Statement.

Financial Statement are fundamental to all family law cases. You and your spouse will each have to complete this document whether you are negotiating the outstanding issues, whether you are mediating them, arbitrating them or having them resolved with the assistance of the Court.

Financial Statements tell the reader a lot about you and your financial circumstances, at various points in time. This information, in turn, may be vital to your ability to pursue certain claims before the Court. What does this mean? For example, if you are asking for spousal support, you need to establish on your Financial Statement that you have need (you do that in your budget/Expenses) and also that your income is not sufficient to meet that need (this is not the only basis on which spousal support may be ordered but we are using "need" here to illustrate our point). By way of another example, if you are making a claim of equalization and you had significant assets at date of marriage for which you wish to take date-of-marriage deductions, then these assets need to be properly reflected in the assets portion of your Financial Statement.

TIP #4 re: completing a Financial Statement - the better you understand the reason you are expected to complete a particular section of the document, the more on-point and accurate your entries will be. Ask questions if answers to them will help you understand the form. You will be helping yourself and your legal team.

Should I negotiate with my spouse, without a lawyer?

Separation is often a very emotional journey - whether you are the one who triggered it or whether you are at the receiving end of the news, there are so many issues to consider, so many new concepts to understand (including in the area of family law) that the circumstances can quickly become overwhelming.

The answer to the question posted in the title of this post should really be considered in light of the opening paragraph. Ask yourself this:

1. are you emotionally strong enough to sit across from your spouse and negotiate the terms of your separation? Is your spouse emotionally strong enough so that any "deal" you strike would be viewed by an outsider as a fair one?

2. do you understand the law as it applies to your separation? If you think that to deal with property rights on separation, "we divide everything in half", then you do not understand this area of the law. Do you understand the difference between the law as it applies to married/separating spouses as opposed to common-law/separating spouses? For example, are you aware of the concept of "joint family enterprise"? Do you know what possessory rights are? Do you understand the concept of mobility? Does your spouse?

3.  are you sure that "all the chips are on the table" for the purposes of your proposed negotiations, meaning, that you are truly aware of your spouse's earnings, assets and debts? Do you truly know what they "have"? Did you and your spouse exchange full disclosure?

THE POINT: there is nothing preventing you from negotiating directly with your spouse. Whether that is a good idea is another issue altogether and depends on the circumstances of your case. Likely not the clean, direct answer you were looking for but there it is - would you consider asking your friend to remove your appendix? Well, the answer depends on the circumstances. If they are a doctor, you might. If they are a retired doctor who last practiced 15 years ago, you might not. If they are a gardener, you might not. If you are exceedingly stressed, you might not be in any shape to make a reasoned decision about any alternative treatment for your acute appendix so an emergency doctor should be your medical provider of choice. I think you "get our point".

Seek legal advice about legal issues, at least by way of consultation. Do not bargain your legal rights and obligations until you know what they are. It is important to negotiate on a level playing field, making sure there is no imbalance of power in discussions of any settlement. A solid, fair and lasting deal depends on it.

Do I need a lawyer to go to Court?

More and more people ask this question, particularly as the costs of living increase and financial pressures on average Ontario families mount.

The simple answer is "no, you do not".  There is no rule which says that only lawyers can present or defend cases in Court.

Courts in Ontario are equipped to deal with people who come before a Judge without a lawyer. Such individuals are referred to as "unrepresented" or "self-represented".

Now let's consider the question from a different perspective and use the following analogy to illustrate the point. What is the answer to the following question: "do I need a doctor to treat my red eye?" The simple answer is you do not - you can certainly treat the problem yourself and you may be able to cure the problem too, after trial-and-error with different remedies at your disposal. On the other hand, if you see a doctor about your red eye, he/she may diagnose the problem with more precision and zero in a lot faster on the treatment, including prescription medication, all leading to a speedy recovery.

Back to our lawyer question: an average person on the street is not trained on what family law legislation says and means, and what case law has provided by way of precedent. Nor is he/she familiar with court administration and the rules related to the conduct of a family law case (and all unrepresented litigants are expected to "play by the same rules" as those who attend with lawyers).

The right lawyer CAN help your case move forward faster and in a more organized way. Most importantly, a lawyer is able to advise you all issues relevant to your circumstances - you may not even be aware of such issues because you lack the legal training.

If you cannot retain a lawyer to act for you then at least invest in a consultation as to your legal rights. It's important.

UPDATE - January, 2018

We are pleased to let you know that our Etsy shop is now OPEN!

Visit it here: SELFREP SUPPORT

In the shop, we make available to you Manuals (E-books) on various topics, to assist you in representing yourself before Ontario's family law Courts.

So far, we have Manuals on preparing an effective:

• Financial Statement (both long-form and short-form); and
• Affidavit.

MORE MANUALS TO COME! 

"Normal" or "usual" access schedule

We are frequently asked by parents about a "standard" or "normal" access schedule. Is there such a thing?

Not really ~ access schedules vary with families, the parents' work commitments and the child's/children's needs but there are some patterns (assuming parents are not sharing the children's residence), for example:

1. Alternating weekends, with a mid-week visit. Here, there may be variations as to:

a. the beginning and end of the weekend access (eg: Friday after school or Saturday morning (for the start) and Sunday evening or Monday morning at school (for the end);

b. the duration and frequency of the mid-week access - it may be an overnight or just dinner, for example. It may also be limited only to weeks which do not end with the access parent's weekend.

2. alternating Saturdays and Sundays (with the parents sharing each weekend but alternating as to the day);

There are a number of other variations of the above themes, depending on each family's needs.  The keys to making any access arrangement work, for the children and the parents, are:  open minds, good faith, patience and a recognition that children must never be caught up in disputes between their parents.

Amedeo Modigliani - Seated Woman in Blue Dress - 1918

"Legal Separation"??

The term “legal separation” is often misused and frankly, misunderstood. I often have individuals calling me because, as they say, they want "a legal separation".....

Whether a couple is separated or not is a question of fact. It is sufficient for one party to give effect to a separation, by their actions. The other side does not have to be in agreement with the separation for it to occur.

Contrary to a prevailing notion, a separation of a couple does not have to be registered anywhere or legally confirmed in writing in order to take effect.

In Ontario, the date of separation is relevant to at least two issues, namely, the divorce and the equalization of net family property (property division).

For more information, I encourage you to seek legal advice from someone who routinely practices in this area of the law.

Work by Gerard Dubois

What is a "Separation Agreement"?

A Separation Agreement is a contract between separating spouses, whether married to each other or not. It is usually a document made up of many pages, signed by both parties, and generally speaking, Separation Agreements are meant to deal, on a final basis, with all issues arising out of a separation. Sometimes Separation Agreements become Court Orders and sometimes they do not. This depends on the legal context in which they are signed.

There are circumstances in which Interim (temporary) Separation Agreements are appropriate.

A Separation Agreement can be a complex document, depending on the circumstances of the parties and whether or not, for example, it deals with children's issues as well. In order to be properly binding and to have the desired consequences for the parties (a measure of finality, for example), the contract has to have some important attributes, including independent legal advice for each of the parties, as well as complete and frank financial disclosure.

"Home-cooked" Separation Agreements are always cheaper in the short-run but they can be very expensive in the long-run, especially when one of the parties discovers, at a later date, that the Agreement is either not enforceable or not giving them what they expected it would.

Spend your money wisely and with forethought.