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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Entitlement to Spousal Support
The courts have held that an Applicant for spousal support, must demonstrate the following in order to qualify for interim (ie. temporary support):
- a “good, arguable case”;
-a “prima facie case ” (ie. valid on the face of the case);
- demonstrate “credible evidence sufficient to entitle one to support”.
Therefore, on a motion for interim support, the Applicant must demonstrate some degree of entitlement to or need for interim support. A court would assess the evidence and if the Applicant can establish a claim for support an Order may be granted. (Ref – Family Law Newsletter – Epstein’s this Week in Family Law – April 19, 2011).
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.
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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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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.
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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Annulment and Duress
A marriage can be annulled on the basis of “duress”. Duress negates consent to the marriage. It is a very difficult argument to make. In determining whether or not a person can use the “duress” to invalidate a marriage, a court must examine the following:
- “a party’s emotional state at the time of the marriage ceremony;
- the party’s vulnerability;
-the time between the alleged coercive conduct and the marriage ceremony;
- whether the marriage was consummated;
-the residence of the parties during the marriage;
- the amount of time until the start of the annulment proceedings.” (ref – Family Law Newsletter, Aug 23/11 – Epstein’s This week in Family Law)
Please contact Fine & Associates to discuss whether or not you qualify to obtain an Annulment.
Posted in divorce, lorne fine, marriage | Tags: child support, divorce, lorne fine, toronto child support, toronto divorce lawyer | No Comments »
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.
Insurance for Child Support
When there are children of the relationship, or a spousal support obligation, it is important to have a provision in any separation agreement dealing with life insurance. These provisions serve as security for child support/ spousal support in the event that the support payor dies while the dependent is entitled to child/spousal support. The life insurance provision should provide that the support recipient is designated as the beneficiary for the life insurance policy of the payor. If the support recipient is designated as the beneficiary in trust for the child, the Agreement should set out the specific terms of the trust. Once the Separation Agreement is signed, it is important to send the insurance designation to the insurer. The designation should be “irrevocable” so that the payor cannot change or revoke the designation. If a payor does not want the beneficiary to receive the insurance proceeds once he/she dies, the insurer must change the beneficiary.
Please feel free to contact Lorne Fine & Associates to discuss your child support/ spousal support issues.