Podcast: Legal Separation Agreements and Divorce Advice in Ontario
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In this transcribed interview with Dale Goldhawk of Zoomer Radio AM740 in Toronto, family and divorce lawyer Lorne Fine of Fine & Associates Professional Corporation offers advice on legal separations and divorce. Read the interview below, or listen to the podcast at the bottom of the page.
Goldhawk Fights Back Podcast: Recorded December 11, 2012
Interviewer: In case you were wondering, it is 12:19 here on Zoomer
Radio, and I have in the studio with me Lorne Fine. He’s a family and
divorce lawyer at Fine and Associates professional corporation. Thank you
very much, Lorne, for coming in.
Lorne: My pleasure. Thank you for having me.
Interviewer: We were talking the other day, Mary and I, about the
pressures that people face around Christmas time. One of us brought up the
fact that families that are going through separation and divorce, and maybe
a custody battle on top of that. This might be a fairly tough time of the
year for people in those circumstances.
Lorne: Yes, it could be very difficult. What’s important for people is
to be child-focused, to think about the kids, that it’s not about them,
it’s about the kids, and to try to resolve things as amicably as possible.
Interviewer: Of course, that’s exacerbated by the fact that it’s
Christmas time, when you’re supposed to be having a joyous, peaceful time
and it may be anything but joyous, and anything but peaceful.
Lorne: That’s correct. That’s true. Like I said, you have to be child-
focused. You have to try to not involve the kids in your dispute with your
former partner or your former spouse.
Interviewer: Yeah.
Lorne: And enjoy the holidays with your child as much as possible.
Interviewer: Yeah. Are you, in some ways, luckier if you’re seeking a
divorce and there are no children? It makes it a little less complicated,
doesn’t it?
Lorne: It makes it a lot less complicated.
Interviewer: A lot less complicated?
Lorne: A lot less complicated.
Interviewer: Explain the difference. We know the obvious, but just
explain the difference.
Lorne: If there are children involved, then you’re dealing with
custody access issues. You’re dealing with child support. The emotions can
run even higher than normal. Without the children involved, you’re just
dealing with property issues and spousal support. It just makes things
easier.
Interviewer: Yeah. And then, of course, there’s the whole area of an
uncontested divorce. You, maybe, don’t have a bone to pick with your
spouse. But, you still, in those cases, you still need a lawyer, don’t you?
Or do you?
Lorne: Well, it depends. I have people calling me who say they want a
simple uncontested divorce and there are kids involved. Well, you can’t
just get a simple uncontested divorce if there are kids involved. The court
will not grant the divorce if they’re not satisfied that proper support is
being paid. So, you have to deal with a separation agreement. You have to
deal with dealing with child support. And then you can get a divorce. A
simple uncontested divorce only means that you can get remarried. That’s
all it means, so yes, it’s easier. Do you need a lawyer? Not necessarily.
Interviewer: So, you could have an uncontested divorce with no kids.
Relatively?
Lorne: No kids, and if there’s no property, if it’s very simple. If
there are no kids and no property, then yes, you can.
Interviewer: People must do that, don’t they? From time to time.
Lorne: People do do that. Yes.
Interviewer: But, I think what you’re saying is, with kids involved,
whether it’s the friendliest divorce known to mankind, if kids are still
involved, you need that lawyer.
Lorne: Yes. You should have a lawyer to advise you of your rights,
your obligations. You have to deal with child support. Child support is not
always easy. It depends on the payor’s income. It depends on the custody
arrangement that you have, whether it’s shared custody or split custody, so
it’s not as easy as people may think it is, and you definitely should speak
to a lawyer before you enter into any type of agreement, that’s for sure.
Interviewer: Yeah, that should be done with a lawyer. Well, actually,
with a lawyer from both sides, you would want, wouldn’t you?
Lorne: Absolutely. You always want the other side to have what’s
called independent legal advice. I can’t act for both sides. I cannot act
for both a husband and a wife. You definitely want both sides to have a
lawyer. You want everyone to know what their rights are. In order to have a
valid agreement, you want everyone to have independent legal advice.
Interviewer: Is the first step along the highway reaching some kind of
separation agreement? Is that what you would call step one?
Lorne: That would be the ultimate. I usually start my cases with, I
say to my client, “Do you think we can negotiate a deal? Do you think that
the other side is open to negotiating something to compromise on some of
the issues?” Sometimes, and most times, they’ll say let’s try and see if we
can reach an agreement, and if we can’t then we have to try to resolve the
issues by other means. Whether it’s litigation, whether it’s negotiation,
mediation, arbitration, there is a whole slew of ways that we can try to
resolve the issues if we can’t negotiate it.
Interviewer: If a separation agreement cannot be reached, though, what
kind of status does that put the couple into?
Lorne: Well, when all the issues are on the table…
Interviewer: Everything stays on the table, right?
Lorne: Everything stays on the table. You have a choice. If you can’t
come to an agreement with your spouse, then that’s the purpose of a court,
to help people come to a resolution when they can’t decide amongst
themselves. So you go to a judge, and a judge can decide the issue. Of
course, that’s more expensive, and stressful, and you’re really giving a
third party, a stranger, the right to make decisions in your life.
Interviewer: That’s right.
Lorne: We have excellent judges, but the judges don’t know you. They
don’t know your children. It’s always best to have control over your own
fate. So, another option is try to have a four-way meeting. The other side
has their lawyer. I would act for one side, and you get together and you
see if you can make a deal. If that doesn’t work, there’s mediation, where
you bring in a mediator, another party who tries to listen to the parties’
positions, sees if they have common interests, and tries to bring them
together to come to an agreement. One step away from mediation is mediation
arbitration, where either the mediator, that same person, says we try to
negotiate and try to mediate a dispute. If we can’t do that, then I’m going
to arbitrate. I’m going to decide what the decision’s going to be.
Interviewer: But both sides have to agree to that, right?
Lorne: Both sides have to agree to that.
Interviewer: But how many cases go right through to the bitter end with
nothing really decided and the judge makes the call?
Lorne: You mean, how many things go to a trial?
Interviewer: Yeah.
Lorne: Very few go to a trial.
Interviewer: Very few get that far.
Lorne: Very few cases.
Interviewer: Arbitration would probably catch them all, is that fair to
say?
Lorne: Arbitration…
Interviewer: Because of its nature. Both sides agree this person will
decide.
Lorne: Well, you know, be careful what you wish for in many cases,
because you’re choosing this one person, and the person may not necessarily
go your way. But is it faster? Usually it’s faster than going to a trial.
Very few things go to a trial, because the court process is geared toward
trying resolve cases. So there are different steps. There’s a case
conference, where a judge tries to negotiate a resolution of the issues, a
settlement conference where a judge tries to hear you and resolve your
issues. So each step is trying to come to a resolution. The court
discourages a trial.
Interviewer: True enough, but the court still gets involved in some
cases even beyond arbitration, right?
Lorne: Well, no one can force you to go to arbitration. A judge can’t
order you to go to arbitration or mediation. A judge can’t do that. But,
the judges want to try to discourage a trial. But they’re there for trial.
If you want to have a trial, they’re there!
Interviewer: Exactly. Especially if kids are involved. Those are some
of the situations where that might happen. This might be a question like
how high is up, but what does a divorce cost these days?
Lorne: It depends. That’s the answer.
Interviewer: I knew you were going to say that.
Lorne: It depends.
Interviewer: Well, maybe there’s a range or something that you could
talk about that would make some kind of sense. We’re just mere mortals, we
have no idea until we get the bill.
Lorne: You know, I always tell my client it takes two to tango. It can
be cheap if everyone negotiates and everyone is reasonable.
Interviewer: If everyone behaves himself.
Lorne: If everyone behaves himself, yes. It’s when they’re not
reasonable. Or one side is unreasonable, or one side may have unrealistic
expectations. Maybe they don’t have proper guidance. It could be a number
of things that exasperates matters. There’s no certain range. It depends on
the hourly rate of the lawyer, as well. That’s also a factor. There’s no
definitive range.
Interviewer: No lawyer, though, is duty bound to say up front how much
it might cost? At least to offer some kind of ballpark figure as you go
along?
Lorne: Well, I don’t know if that’s necessarily the case.
Interviewer: It sounds like I’m shopping for a divorce, and I’m not,
okay? I’m just asking these dumb questions, that’s all.
Lorne: A lawyer can give you an estimate of the cost, whether its how
much its going to cost go to a motion, how much its going to cost to draft
this agreement. The answer is always it depends.
Interviewer: What you’re really saying, is it depends on how long it
takes.
Lorne: Right.
Interviewer: Because, how much of your time, or the other lawyer’s
time, is involved, you guys have to make so much money every hour. Right?
Lorne: Right.
Interviewer: That’s the idea.
Lorne: Well, listen. Lawyers don’t want to exasperate matters. Lawyers
don’t want to increase costs. They don’t. Lawyers want to try to resolve
things as quickly and as cheaply as possible. You want your clients to be
happy. You want your clients to tell other parties what a great lawyer you
are. It’s part of your reputation. Nobody wants their clients to walk away
from the divorce and say, “That guy was lousy. Boy did he rip me off.”
Everybody wants their clients to be happy.
Interviewer: You’ll wind up on the internet, that way, if you’re not
careful. Word of mouth is important, though, isn’t it?
Lorne: Very important. Your reputation is very important.
Interviewer: Do you find yourself acting a bit, as a lawyer of course
with all the responsibilities that you have there, but acting a bit as a
social worker as well? You have to handle all these emotions that are right
out there, and right up front in these warring parties situations.
Lorne: Yep, you’re absolutely right. Family and divorce law is
obviously more emotional than corporate law, more emotional than criminal
law. I have a number of experts that I use that I refer clients to. I’m not
a psychiatrist, I’m not a psychologist. I’m not trained in that way. I
refer my clients to the experts to help them out dealing with their
emotions.
Interviewer: But still, your client thinks of you as their lawyer and
as there for an encouraging word or two from time to time.
Lorne: Oh yes. Of course.
Interviewer: What I’m saying is, it’s a more, as you say, touchy-feely
situation between client and lawyer than some other areas of law.
Lorne: Absolutely. We recognize our clients are very emotional. It’s a
very stressful time. There’s a certain amount of hand-holding. But, like I
said…
Interviewer: You’ve got to have a good bedside manner here, as it were.
Lorne: I try to. But like I said, I’m not a trained psychiatrist. I’m
not a psychologist. There are people who are there to help out, and it’s
absolutely necessary, I think, to have a team effort to help people.
Interviewer: Do you often refer a client who is having very tough time
in a case like this? You might refer a client to a professional?
Lorne: All the time.
Interviewer: Really, that happens, right?
Lorne: All the time, sure.
Interviewer: But do you still get calls from a client saying, “Lorne,
you’ll never guess what he did yesterday.”
Lorne: All the time. More emails. More emails than phone calls.
Announcer: Goldhawk Fights Back for You airs Monday to Friday, 11:00 to
1:00 on AM 740, Zoomer Radio.
Interviewer: 12:36, Lorne Fine is here. He’s a family and divorce
lawyer, and we’re asking if you have any questions about that particular
process involving family law, divorce law, as well. Here are the numbers,
416-360-0740 or 866-740-4740. Lorne, it was a number of weeks ago, now,
that a certain finance report hit the news across the country. Talking
about financial pressures for older couples, zoomers in their sixties and
maybe even seventies. The fact that since more and more of them seemed even
at that age to be getting divorced, it was presenting great financial
hardships on their family. Do you see that in your practice?
Lorne: There’s no doubt that when parties go through a divorce that
there are going to be financial repercussions. All of a sudden the pie is
cut in half. I have many situations where somebody pays into a pension for
many, many years, and the pension is a valuable pension, and now they have
to divide it. They expected to retire on a certain amount of income, and
now because the pension is going to be divided, they now have to retire on
a lesser income. So yes, it can be very stressful. There’s something called
divorce financial planner that assist through the divorce process.
Interviewer: In that very case.
Lorne: Exactly.
Interviewer: In my many years in the business, I’ve often encountered
situations, in effect, where warring couples have said to each other, quite
bluntly, “I don’t think we can afford to get divorced.”
Lorne: There’s a cost for divorce, yes. There’s no doubt that it’s
stressful on the family, it’s stressful on the finances. It’s really
something that everybody has to weigh when they go through the process.
They have to evaluate what the outcome is going to be at the end of the
road.
Interviewer: I was searching earlier for a good updated figure on how
many divorces are granted any given year in Canada, and man oh man, that’s
kind of a fruitless search in terms of divorces granted. I found one from
2008 that suggested 70,000 divorces had been granted in Canada. But I also
know that the number of divorces, when you get smaller pieces of anecdotal
information, the number of divorces is dropping across the country. Do you
agree with that observation?
Lorne: I’m not really certain about the statistics, but there are also
common law couples. There are people who are together but who aren’t
married, but break up. So, the divorce statistic won’t reflect those people
that break up.
Interviewer: Right. That was the other half of what this one study I
read said. Divorce rates are down, but then marriage rates are down, too.
Well, what if you are in that common law situation. Is that a matter for a
divorce lawyer?
Lorne: It still is an issue, it still is a family law, divorce law
issue.
Interviewer: It’s a family law issue, isn’t it?
Lorne: You’re not doing a divorce. The divorce act is a federal act
and deals with married couples. Common law couples, it’s a little bit more
complicated as far property division is concerned because there is no set
rules as far as division of common law spouses.
Interviewer: Careful you don’t hit the mic, you gesture a lot, and when
you gesture in radio you can sometimes hit things.
Lorne: Got you.
Interviewer: It can be more complicated than divorce?
Lorne: When it comes to common law couples and property division…
Interviewer: That’s the big deal, isn’t it, the property division?
Lorne: Yes, and there have been recent decisions from the courts
dealing with division of property for common law couples. There’s this new
concept called joint family venture, where a judge tries to determine
there’s a joint family venture as far as finances are concerned. There’s no
hard and fast rules dealing with division of property for common law
couples. The family law act provides for division of property for married
couples, but no hard and fast rules for common law couples. So, the
legislature, will eventually enact legislation, probably, dealing with this
issue because there are so many more common law couples.
Interviewer: So, from a legal point of view, that can present a larger
challenge than a regular marriage?
Lorne: It is.
Interviewer: Really.
Lorne: Right.
Interviewer: Here is Liz on the phone from Port Rowan. Liz, do you have
a question for Lorne Fine?
Liz: Yes, first I have a comment. I’ve been divorced about 16 years, and
my lawyer was absolutely wonderful.
Lorne: Good to hear.
Liz: He cleaned it all up in one year. It didn’t cost me all that much. I
had been married 28 years, you know, so we kind of just split it right down
the middle. I really like my lawyer, he’s great. A lot of people don’t like
lawyers, but I do. However, my question is, we had cemetery plots when we
were married, and I do not even think about checking into them. Now, I’ve
been told that I don’t get my plot.
Interviewer: Who told you that?
Liz: Do you know anything about that?
Interviewer: Who told you that?
Liz: The manager of the cemetery.
Interviewer: Oh, alright. Well, Lorne, I guess that’s something that
should have come up during the divorce, right?
Liz: You know, you’re not thinking of everything.
Interviewer: Yeah, I know, you’re right, Liz. You’re right. Is there
any going back on things like that?
Lorne: Well, you’ve been divorced for 16 years. It’s been a long time.
Maybe there were dues owed on the cemetery plot and they weren’t being
paid. Is that what happened, Liz?
Liz: No. My ex-husband paid for the plots outright. He paid with a check.
It was only his signature on the check, although it was a joint bank
account.
Interviewer: Okay.
Lorne: He stopped paid for your plot, is that what happened?
Liz: No, he paid for plot while we were married.
Interviewer: But he’s not paying for it now.
Liz: It was paid for.
Interviewer: Oh, it’s totally paid for.
Liz: Totally paid for.
Lorne: And so, what’s the reason for you not getting your plot?
Liz: I have no idea. I was just told by the manager at the cemetery that I
wouldn’t get it. He can give it to the person he’s married to now.
Lorne: Oh, he transferred the plot, your former spouse transferred the
plot to somebody else? To his new spouse?
Liz: Yeah. Is that legal?
Lorne: Well, you’re going to have to deal with the cemetery. But, if
the cemetery plot is, in fact property, it should have been dealt with on
the agreement.
Interviewer: It should have been part of the divorce because it was
actual property, right?
Lorne: If it’s property, then it should have been dealt with.
Interviewer: Liz, I’m not trying to be indelicate, but you don’t want
to be buried next to him, do you?
Liz: No, but my son is there.
Interviewer: Oh, your son is there.
Liz: Yes. My son died when he was 15 of cancer.
Lorne: I’m sorry.
Interviewer: Oh my.
Liz: I would like to be buried there.
Interviewer: Because of your son, not because of your former husband.
Well, it’s going to require talking to your former husband, it sounds like
to me. That’s my mere mortal advice. Let’s hear from a lawyer.
Lorne: I think you’re right. You’re correct.
Liz: Oh, thank you.
Interviewer: Are you on speaking terms with this guy?
Liz: Not really.
Interviewer: Not really, okay.
Lorne: Maybe you can talk to the cemetery?
Liz: I cut my strings, you know what I mean?
Interviewer: But you talked to the cemetery, and that’s what they told
you.
Liz: That’s what they told me, and then I called my ex-husband, and he
said, “You don’t get it. My wife is getting it.”
Interviewer: Oh, I see. So, he remarried and…
Liz: I never talked to my lawyer, because I thought, well.
Interviewer: Well, Liz, I think you already know the answer then.
Lorne: That’s very difficult. I think maybe talk to the cemetery and
see if they can accommodate you somehow.
Interviewer: Somewhere nearby or something of that nature. Liz, thanks
very much. That brings up an interesting point, doesn’t it? About making
sure that at the time of the divorce, when you’re splitting up the
property, you thought about everything.
Lorne: It’s hard to think about everything. It’s hard. You have to,
though. You have to contemplate, especially property, contemplate what
property you have.
Interviewer: Every single thing?
Lorne: That’s unusual. I haven’t heard that in a long time, as far as
cemetery plots. Because I don’t think people consider it. They don’t think
about what’s going to happen.
Interviewer: But if it’s bought and paid for, as plots are…
Lorne: It’s property.
Interviewer: … it is actual property.
Lorne: Right. If you can sell it, then it’s property. It should be
dealt with. But like you said, this situation, unfortunately, her son
passed away.
Interviewer: You understand then, why she’d like to be there.
Lorne: Obviously, but you know. If her son wasn’t there, then…
Interviewer: It proves that there’s good and bad in every divorce. It
was good that the divorce, as she says, went through fairly, efficiently.
She loves her lawyer. Don’t you love to hear that?
Lorne: I love to hear that. Who doesn’t love their lawyer?
Interviewer: I have a list here.
Lorne: People don’t like their lawyers? Never heard that before.
Interviewer: Well, no. Just like they love journalists, right?
Lorne: Yes.
Announcer: Goldhawk Fights Back for You airs Monday to Friday, 11:00 to
1:00 on AM 740, Zoomer Radio.
Interviewer: 12:49, and Lorne Fine is here, a family and divorce
lawyer. We’re taking questions. Here’s Astrid in Brampton. Astrid, what’s
your question?
Astrid: Hello, gentlemen. Just a comment about this lady who just
called in, who had been married for a long time, divorced, lost her son.
Interviewer: Yeah.
Astrid: And she has no access to the cemetery.
Interviewer: Well, she has access to the cemetery, but it’s a question
of being buried there.
Astrid: Not to the graveyard, to the gravesite. Now, he was the son of
both of them, so what happens if when she goes on, and her ashes are put in
with her son, in his grave?
Interviewer: Well, the owner of the plot is the former husband, Astrid,
and I don’t think we could get down into the weeds on that one. Maybe they
could work something out, but it sounds like Liz has already called her
former husband and the answer is a no. It’s not going to happen. Here’s
Chuck on the line from Mississauga. Chuck, do you have a question?
Chuck: Yeah, I do have a question regarding my pension from my
previous first marriage. Now I’m in the midst of a second split-up, and my
ex is claiming my pension, which I had previous to our marriage.
Lorne: Your ex from your first marriage is claiming the pension?
Chuck: No, from the second marriage.
Lorne: Okay.
Chuck: So, she’s claiming entitlement to half of my pension, which I
actually owned before we were a couple.
Interviewer: What kind of a pension?
Chuck: Through a trade union.
Interviewer: Okay.
Lorne: So, a pension is property, it’s an asset, and is to be divided.
How long was your second marriage?
Chuck: 13 years.
Lorne: Okay, and you had the pension before you got married?
Chuck: Yes, I did, but my problem is I can’t suitably prove that I had
it before we were married
Lorne: Okay. Actually, you can prove it. You were in the same pension
for this whole marriage?
Chuck: Yes.
Lorne: Okay. So, you go to your trade union, there is an administrator
of the pension, and they will have records as to when you joined the
pension, and what you’re dividing with your second spouse is the increase
in value of your pension from the date of marriage to the date of
separation. So, it is property, and she has an interest in it, and it’s to
be divided.
Chuck: Yes.
Lorne: Now, there’s a new law, it’s called Bill 133. It deals with the
division of pensions. How that works is the pension becomes part of your
property, but it is possible to divide the pension in specie. In other
words, half of your pension that’s cumulated during the marriage, let’s say
for simplistic regions, is rolled into a locked in, registered pension plan
for your space.
Interviewer: During the years of marriage?
Lorne: During the years of marriage.
Interviewer: Right.
Lorne: So, that’s calculated. The plant administer will calculate
that. You have to calculate the net figure, so there’s a tax element to
that, that has to be determined, and your spouse can get half that pension
accumulated assuming there are no other assets or debts accumulated during
the marriage. So, you should speak to your plant administrator. They will
have a record as to how much you accumulated in your pension during the
course of the marriage and you should speak to a lawyer about dividing that
pension and how best to do it.
Interviewer: Because, she does have a claim to some of it.
Lorne: She does, but you also have to look at the other assets, and
the other debts. You have to look at the whole picture. You can’t just look
at the pension separately, but I’m just telling you there’s a way of
dividing it and dealing with the property division.
Interviewer: But there’s no automatic 50 percent kind of thing that
people seem to think applies to pretty well everything.
Lorne: No, it’s not automatic. It’s not 50 percent. No. There’s a
calculation that you have to go through, hopefully with the assistance of a
lawyer. I always tell my clients, don’t be pennywise and pound foolish. I
have many clients that try to save a few bucks, do their own deal, and end
up costing themselves hundreds of thousands of dollars, and then they come
to a lawyer to try to fix the deal.
Interviewer: After the fact.
Lorne: After the fact. I have one client that actually cost himself
$300,000
Interviewer: Oh.
Lorne: He did a deal with his wife, came to me, I said, “You overpaid
by $300,000.” And so we had to redo the whole thing, and it was very
difficult. It’s very difficult to redo something.
Interviewer: Chuck, thanks for the question. You follow those steps. Go
to the plant administrator, and then to a lawyer, and work these, these are
far too complicated to be handled by the likes of me.
Lorne: It’s too complicated.
Interviewer: Okay. Here’s Marg calling from Ingersoll. Marg do you have
a question?
Marg: I was just going to comment, much as the other fellow did,
about the lady with her cemetery plot.
Interviewer: Yeah.
Marg: My husband’s grandparents were separated, and the grandmother
is buried in the plot, and the grandfather was put in Potter’s Field with a
headstone on, so I don’t know.
Interviewer: Yeah, those things…
Marg: The other thing was, if the son was in a separate grave and not
in the grave with the father, like she said, she could be cremated and
buried. Some cemeteries do bury them too deep.
Interviewer: Yeah, Okay. Well, Marg, thanks. I had no idea this would
capture the imagination of people to such an extent. Where you’re buried is
important to many people, and I understand that. If it’s a son you lost at
an early age, I understand that, as well.
Lorne: Sure.
Interviewer: That’s going to wind up being a very emotional situation
to live.
Lorne: I feel for her.
Interviewer: Yeah. Here’s Raymond calling from Toronto. Raymond do you
have a question for Lorne Fine?
Raymond: Yes, I do.
Interviewer: Go ahead, please.
Raymond: I am in the middle of a separation, going on to a divorce, and
my question is, I understand that the values of the property are capped at
the time of separation, is that correct?
Lorne: Yes. The date of separation is called the valuation date, and
it’s on that date that the values crystallize.
Interviewer: That’s when something is signed though?
Lorne: No.
Interviewer: Oh, okay.
Lorne: Not necessarily. The date of separation is called the valuation
date. The question is, what is a date of separation? Sometimes that’s a
gray area. The test is, when was there no reasonable prospect of
reconciliation. That date may be different for both parties. One date,
someone may think the marriage is over in January. The other party may
think that the marriage is over in July.
Interviewer: Then, it’s a matter of negotiation to figure that out?
Lorne: It’s a matter of negotiation, yes. It also depends on the
values. Maybe the values weren’t much different. The values of the
property. Maybe the values weren’t much different in January as opposed to
July, so it may or not be relevant depending on the values. But it
certainly can be a very contentious issue.
Interviewer: Raymond, do you have another question on that same line?
Raymond: Yes, I do. In a case of a separation where there has been
spousal abuse, does that come into play during a divorce?
Lorne: In what sense?
Raymond: For example, you were saying that property has to be equally
divided, but in the case of spousal abuse, when one person suffers as a
direct result of the other spouse and is not able to earn enough money at
that point, would the courts take that into consideration?
Lorne: Okay, so as far as division of property is concerned, the court
is not going to look at abuse as a factor. But when you said that it would
impact the person’s ability to earn a living, I think that’s what you said.
Raymond: Yes, I did.
Lorne: That deals more with support. So, if something happened during
the course of the marriage that had a detrimental impact on one party and
they can’t work, then you’re dealing with spousal support issues. You’re
talking about entitlement and so on. That is a factor to consider when
you’re dealing with support issues.
Interviewer: But allegations of spousal abuse don’t enter into the
splitting up of the property? I think, Raymond, that’s what you’re asking.
Raymond: Yes, I did.
Lorne: No, that has nothing to do with it.
Interviewer: That has nothing to with it, in itself.
Lorne: No. As far as, when you’re dealing support issues, you’re
talking about the roles during the marriage, whether one person stayed home
or didn’t stay home, why they didn’t work, did they work, those are all
issues that deal with support. So, it’s not as if, if there’s abuse during
the course of the marriage, you’ll get more spousal support. That’s not the
case. But, the courts do look at the surrounding circumstances of a
marriage.
Interviewer: Okay, Raymond?
Raymond: Can I just ask another question?
Interviewer: You have to be very quick. I’m running out of time.
Raymond: Separation. I just heard this mentioned, it doesn’t have to be
indicated on paper. If both parties agree that’s when the separation
occurs, that’s when it takes effect?
Lorne: Yes. If both parties agree on the date of separation, then
that’s the date of separation.
Raymond: Appreciate the help.
Lorne: And like I said, there’s a different test that has to go
through to determine what the date of separation is.
Interviewer: Raymond, thanks very much for the questions.
Raymond: Thank you.
Interviewer: Okay. Lorne Fine, thanks very much for the answers.
Lorne: My pleasure. I’m trying.
Interviewer: We didn’t get to all the calls. Will you come back at some
point?
Lorne: Whenever you want me. My pleasure.
Interviewer: Okay. Well, it would be our pleasure to have you back to
answer questions in what is, from time to time, a pretty complicated area
of law, isn’t it?,
Lorne: It’s not as simplistic as people think it is. It’s not 50/50.
Interviewer: Well, that’s what people think, it’s got to be 50/50!
Lorne: Split it down the middle, no problem. that’s not the case.
Interviewer: That’s not the case, is it?
Lorne: No.
Interviewer: Okay.
Lorne: My pleasure, thank you for having me.
Interviewer: Well, thank you very much, Lorne for being here. That’s
Lorne Fine, and he is a family and divorce lawyer.
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