common law spouses
What is the process of Mediation?
May 7, 2012 | 
Author There are usually five stages to mediation:
Stage 1: Introductions
- Mediator introduces themselves and explains the rules for mediation (i.e. act courteous to each other, no arguing, take turns speaking, either party or the mediator can terminate at any time etc.)
Stage 2: Listen and Clarify the Stories
- Mediator asks the parties to present their story and clarifies any of the facts
Stage 3: Clarifying the Problem
- Mediator clearly restates the underlying concerns of each disputant (i.e. “Am I hearing you correctly when I hear you say …) and identifies the issues to be examined
Stage 4: Finding Common Ground
- Mediator asks the parties what they feel needs to happen in order for the conflict to be resolve
- Mediator hears the suggestions that each party makes and asks for their opinions on the suggestions
- Check to see if there is a mutual agreement for a solution. If so, restate it to ensure both understand and agree. Mediator then writes out the final resolution.
- If there is no mutual agreement, Mediator can meet with each party individually and review what they would like to see happen
Stage 5: Final Stage of Mediation
- Mediators check with the parties to see that they understand the agreement
- If there is an Agreement, Mediator may draft the Agreement or Memorandum of Understanding
Posted in child support, common law spouses, divorce lawyer mediation, divorce mediation, Domestic Agreements, lorne fine, separation | 
Tags: determine child support in ontario, divorce, divorce mediation, family lawyer mediation, family mediation, lorne fine, ontario child support, toronto child support, toronto divorce lawyer | 
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Spousal Support Advisory Guidelines
The Spousal Support Advisory Guidelines are not legislated guidelines. Although they assist lawyers and the courts in determining the appropriate range of spousal support in a case, the SSAG are not binding on a court. A judge has the inherent discretion to determine what he/she considers the appropriate quantum of support. In Fisher v. Fisher, the Ontario Court of Appeal held that the SSAG are a useful tool in assisting the court in determination of spousal support. As a result, SSAG should be referred to when dealing with support in Ontario.
Please feel free to contact us to discuss your spousal support claim or to respond to a spousal support claim.
How to deal with your Lawyer
It is important to remember these points when dealing with your lawyer in your Family/Divorce matter:
1. Always be Child focused and think of the future of your family. It will likely save you money;
2.You hire your Lawyer to assist you in your matter. You want the best possible results at a reasonable costs. Remember to stay focused on the “big picture” (ie. custody/access, child/spousal support and property division). Do not get hung up on the small details that may not have any impact on the “big picture”. The longer you argue, the more it costs;
3. You want your Lawyer to be objective and not involved emotionally;
4. Your Lawyer is not a psychiatrist / psychologist;
5. Your Lawyer has many clients that all need his/her attention. It is important to recognize that your lawyer may have time constraints in other matters;
6. When your Lawyer asks for documentation or informatiom, it is in your interest to provide him/her with same asap;
7. Be involved in your case and assist the lawyer as much as possible. It is always helpful to provide your Lawyer with an organized document brief and a history of your matter or important facts with respect to your case;
These important points can save you time and money and lead to a “successful divorce”.
Please call us if you require any assistance.
Posted in child support, common law spouses, divorce, lorne fine, Property Division, spousal support | Tags: child support, child support guidelines, determine child support in ontario, divorce, lorne fine, ontario child support, section 7 of the child support guidelines, separation, support guidelines, toronto child support, toronto divorce lawyer | No Comments »
How to Prepare for your Separation/Divorce
In some of our cases, the parties separation has been “brewing” for quite some time. One or both parties may think about separating from their spouse, but they do not approach a lawyer. He/she may be preparing emotionally and financially to separate from his/her spouse. In other cases, a spouse may be surprised to learn that his/her spouse wants to separate. It comes as a complete surprise. They then come to our office and have no idea where to begin or how to deal with their situation. In both cases, when there are property or support issues, you must prepare to deal with same in the following manner:
1. Prepare a list of all assets and liabilities as of the date of marriage and the date of separation. Gather all of the documents to substantiate your figures. If there are any assets that were inherited or received as a gift during the marriage, it is important to provide documentation to substantiate the gift/inheritance and tracing of the gift/inheritance to the date of separation;
2.Do not leave the Matrimonial Home without first discussing the ramifications of leaving the house with your lawyer. It is very possible that leaving the house will have a detrimental impact on the sale of the house and any custody/access issues;
3. Do not incur any debts or allow your spouse to incur any large debts prior to the separation. You want to be able to have sufficient funds to finance any potential litigation. In addition, you do not want your spouse to incur any joint debts that you be held liable for. You do not want your spouse to deplete your equity in your residence by utilizing a joint secured line of credit or deplete their net worth. It may be necessary to cancel joint credit cards and joint lines of credit;
4. If your house is jointly owned, you may want to consider “severing the joint tenancy”. If you own the house as joint tenants with your spouse, and one person dies, the other person will automatically receive the entire house regardless of the terms of any Will. However, your lawyer can prepare documents in order to “sever the joint tenancy” . Each party would then own the house as tenants in common. Therefore, if you died prior to the resolution of your matter, your estate could deal with your interest in the house and it would not automatically vest in your spouse;
5. You may want to consider changing any beneficiary designations on your RRSPs, life insurance, etc. If your spouse is a beneficiary, and you die, he/she would receive the benefit of this asset, notwithstanding that it may be your intention due to your separation;
6. Save your money. A separation/divorce will have financial consequences. You should have a financial cushion to assist you in coping with any monetary issues;
7. Investigate your spouse/partner’s financial situation. Gather as many documents that you can find to substantiate your allegations (financial or otherwise). Copy all documents. Keep a journal/notes. It may assist you if there are future court proceedings;
8. Make sure that your spouse/partner does not have access to your email or mail received at your shared residence. It is important that any discussions that you have with your lawyer be on a strictly confidential basis;
9. If there are children involved, you should maintain the status quo (with respect to caregiving) or, better yet, become more involved with the kids.
Please feel free to contact Mr. Fine to discuss your family situation.
Posted in child support, common law spouses, divorce, lorne fine, marriage, Property Division, spousal support | Tags: child support, child support guidelines, determine child support in ontario, divorce, lorne fine, ontario child support, property division, separation, Separation Agreements, support guidelines, toronto child support, toronto divorce lawyer | No Comments »
Important Rules to Remember when dealing with a Separation/Divorce
It is important to keep in mind the following rules when dealing with a Separation /Divorce:
1. Separation/Divorce is a very stressful experience. It is important to try to deal with the situation in a mature, reasonable, objective manner. Do NOT let your emotions dictate your actions;
2. It is important to have the benefit of independent legal advice and full financial disclosure before you enter into any Agreement with your spouse/partner. Do NOT draft your own Agreement without counsel;
3. Be very careful what you say and do when there is potential for court proceedings or ongoing proceedings. It is likely that anything negative will end up in an Affidavit before the court. You want the judge to have a positive picture of you and your case. Do NOT say or do anything you will regret in the future;
4. Do not lie or conceal any evidence. Your credibility is important. If you lie or mislead the court in any manner or hide evidence or assets, and you are discovered, your credibility will be destroyed. A judge may then be unlikely to believe anything you say. Do NOT lie, cheat, conceal or hide evidence;
5. Be honest with your lawyer. He/she is on your side. Your lawyer should know the entire story. You do not want your lawyer to be surprised by the other side. Your lawyer must know the good with the bad. Do NOT lie to your lawyer;
6. Be child focused. You may hate your spouse/partner, but your love for your child(ren) must be greater than your hate for your spouse/partner. Remember, Divorce/separation may have a lasting negative impact on your children. You do not want your children to suffer because of your actions. Do NOT forget about your child (ren);
Please feel free to contact Mr. Fine to discuss any aspect of your separation/divorce.
Common Law Spouses
Common Law Spouses are defined as those couples that are not married and have a child or have resided together in a relationship for three years or more.
The Family Law Act does not set out specifically how property division is to be determined for common law relationships. The Family Law Act sets out a formula in order to determine the division of property in the event of a breakdown of a marriage between two people.
The recent Supreme Court decisions of Kerr v. Baranow and Vanasse v. Seguin are very important decisions that dealt with the property rights of common law spouses on the breakdown of their relationship. The following findings were, in essence, made by the court:
- The law of unjust enrichment will be the vehicle to address the distribution of assets on the breakdown of a common law relationship;
- The plaintiff must confer an enrichment/ benefit on the defendant (ie. the plaintiff must show that he/she gave something to the defendant, which the defendant retained and which has enriched the defendant and can be restored to the plaintiff in specie or money);
- There must be a corresponding deprivation of the plaintiff (there must be a nexus between the two – a link between the contribution and the accumulation of wealth – the plaintiff’s loss is material only if the defendant has gained a benefit or has been enriched);
- There must be an absence of a juristic reason for the enrichment (there is no reason in law or justice for the defendant to retain the benefit conferred by the plaintiff – there is a contract, or a gift or some other reason why the retention is unjust). The provision of domestic services may support a claim for unjust enrichment;
- The object of the remedy for unjust enrichment is to require the defendant to reverse the unjust enrichment, usually by a monetary award. It may be problematic to quantify the monetary remedy. However, the award should reflect the nature of the enrichment and the corresponding deprivation. The parties will share their accumulated wealth proportionate to the plaintiff’s contributions;
- To be entitled to a monetary remedy on a value survived basis (increase in the value of the property), the plaintiff must show that there has been a “joint family venture” – a link between his/her contribution and the accumulation of wealth;
- In order to determine if there is a “joint family venture” the court must look at all of the circumstances of the parties (ie. mutual effort, economic integration, actual intent, teamwork etc.) There must be a link between the plaintiff’s contributions to the relationship and the substantial accumulation of wealth the family achieved;
If there was a total integration of the family and the relationships and contributions look like a marriage (with no marriage licence), it is possible that a court will divide the accumulated wealth equally.
In some cases, a court might determine the increase in the value of the parties property acquired during the relationship and set it off against the benefits conferred by the defendant on the plaintiff (ie. gifts, accommodation, travel, entertainment etc.). This will not be an easy calculation. It may be based on a percentage of the increase in the defendants net worth since the commencement of the date of cohabitation. The determination is significantly different than as determined for the division of property for married parties in accordance with the Family Law Act.
Therefore, it is difficult to advise exactly what a separating common law spouse is entitled to based on the aforementioned guidelines. Please contact us to examine your situation and discuss how best to proceed.