Property Division
Property Division – Contents
January 23, 2012 | 
Author It is frequently necessary to divide the contents of the Matrimonial Home. You do not want to pay a lawyer to argue over contents, the cost will likely exceed the amount at issue. As a result, there are several methods one can use in amicably dividing the contents of the Matrimonial Home, namely as follows:
1. sell all of the contents and divide the proceeds of sale;
2. have a “shot gun clause” whereby one person makes an offer to purchase all of the contents of the house, but also must be willing to sell his/her interest in the contents to the other party on the same terms;
3. Don’t fight over the contents. It is sometimes not worth it. Take your personal items and forget about the rest. You can always buy a new couch;
4. one party makes two lists of equal value listing all of the contents in the house. The other party gets to pick one of the two lists. It is a risk as to the list of items that you will end up with, but it is quick and easy;
5. one party makes a list of all of the items in the house (group the smaller items together – ie. bathroom contents). The parties then take turns picking from the list.
It is important to stay focused on the big issues (ie. custody/ access, child/spousal support, and property division) and not get hung up on the small issues. It does not make logical sense to fight over tools or books. The cost does not justify the amount at issue. Stay focused and objective and you will have a successful divorce.
Financial Disclosure
There is a recent decision of the Alberta Court of Appeal, Webb v. Birkett, wherein the court held that Family Law Lawyers, whether engaged in mediation, the collaborative law process, or any other process, has a duty to obtain full and complete financial disclosure, unless the client, being properly informed, waives the requirement.
The Court of Appeal held that it is the duty of every lawyer in a family law case to do the followingL
- obtain reliable information to be able to ascertain what the client would likely receive or have to pay for spousal support, child support or property division and to advise the client;
- to discuss the options of settlement with a client, to discuss whether a settlement is reasonable, and to evaluate a settlement in comparison to other options;
-if a client is willing to settle without full disclosure from the other side, and therefore, may be accepting less or paying more than they would be required to pay by law, if possible, to advise the client as to what might be lost or paid. (ref – Family Law Newsletter, April 19, 2011, Epstein’s This Week in Family Law)
Therefore, although clients do not like to go through the process of obtaining financial disclosure to provide to the other side or evaluating financial disclosure received from the other side, it is an important part of the process and is necessary for any lawyer that does not want to be negligent. However, it is ultimately the client’s decision if he/she wishes to resolve their matter without some or all of the financial disclosure. He/she should ensure that he/she is making an informed decision and will not regret his/her decision years down the road for not obtaining full disclosure.
Feel free to contact us to discuss the issue of disclosure in regards to your support or property claims.
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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.
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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.
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Finding a Divorce Lawyer
A separation/ Divorce is a very traumatic event. It is important to find a Family/Divorce lawyer that you can work with and assist you during this difficult time in your life. Some lawyers are willing to listen to your feelings while others are strictly business. You have to decide which type of lawyer you want.
If you are looking for a lawyer, there are several avenues that you can use to locate a lawyer. It is always best to ask friends or relatives if they know of a good family/divorce lawyer. I always appreciate referrals from past clients. The biggest compliment is when a party that I acted against refers a client to our office. It demonstrates that the party recognizes that we did a good job and it is only business. If you cannot get a referral to a lawyer from a friend or relative, you can investigate lawyers online or go to the Law Society of Upper Canada to obtain a referral.
There is nothing wrong with contacting several lawyers and interviewing them. It is worth it to pay the lawyer for a consultation. You will obtain valuable information from the lawyer. In addition, if you meet with the lawyer in person it will assist in determining whether or not you have “chemistry” with the lawyer. You have to work with this person and it helps to get along with him/her.
At Fine & Associates Professional Corporation we are pleased to meet with you and discuss your issues. Please feel free to contact us.
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Compliance with Court Orders
Our office recently acted for the Wife in the decision of Molina v. Molina 2011 CarswellOnt 3569 (Ont. S.C.J.). In this case, the Husband breached several court Orders. As a result, we brought a motion to strike the Husband’s pleadings for not complying with the Orders. The Honourable Madam Justice Healey quoted from the decision of Justice Quinn in Gordon v. Starr that “Court Orders are not made as a form of judicial exercise. An Order is an order, not a suggestion. Non-Compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all too common caual approach to compliance with court Orders.” Justice Healey struck the Husband’s Answer. As a result, the Husband cannot really particpate in the proceedings. Justice Healey left it up to the trial judge to determine the extent of the Husband’s participation in the trial.
The moral of the story is that although you may not like a Court Order you must always comply with a Court Order. If you are not happy with the result, you can attempt to vary the court order or appeal the Order. If you ignore a Court Order you do so at your peril. A Court Order is not a “suggestion”.
Please contact Lorne Fine & Associates to discuss any Court Order.
How to Work with a Lawyer
When you first meet with a lawyer, it is important to be organized. It is always great when a client has all of his/her questions prepared and ready to go. Although it is not always possible to gather all of the necessary documents to substantiate your claims, it is great when a client has some documents to substantiate his/her claims and/or assets and liabilities. When you are organized, it facilitates the meeting, reduces the time involved, and, ultimately, reduces your legal fees.
I believe that it an informed client is a good client. Some clients want to be copied on all incoming and outgoing correspondence,while others prefer not to know the status of their matter. It is always better to have an informed client. If the client is informed, you can discuss strategy and the progess of the matter. The client also has a better understanding of the progress of a matter. Therefore, when he/she receives an account they have a better understanding as to what is involved.
Lorne Fine and his associates will assist you with all family/divorce maters. Please contact us to discuss your matter.
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.
Financial Disclosure
When commencing court proceedings or negotiating a Domestic Agreement, it is usually necessary to draft a Financial Statement. When completing the Financial Statement, it will also be necessary to obtain all supporting documentation to substantiate the assets and liabilities as listed in your Financial Statement. This can be a difficult and tedious process. If you are unable to substantiate the assets and liabilities as of the date of marriage, you will probably be unable to claim the deduction. If it is discovered that you did not disclose your assets as of the date of separation or the date of marriage, there is a risk that the Domestic Agreement may be set aside and you will be accused of swearing a false statement. It is always important to make full and complete financial disclosure.
How Long Does it Take?
When the client is in the process of initially retaining us we frequently get asked, “how long is this going to take?”. The answer is “it depends on you and your spouse”. If people cooperate, their issues usually get resolved faster and usually their costs are less. However, if one of the parties do not want to cooperate, or have unreasonable demands, or are being difficult in any other way, the matter will likely take longer and usually cost more. It is always best for all parties to try to negotiate a reasonable resolution of their issues. It will usually take less time and cost less. We can assist you in negotiation of your issues.
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