Most couples who resolve the legal issues arising from their separation figure that once the ink is dry on their settlement that they can then get on with their lives relatively free of entanglements with their ex-spouse (especially when there are no children involved). In most situations this will be the case, however, it is crucial that the wording of your settlement be ‘crystal clear’ and free from ambiguity to maximize the likelihood that future problems be avoided.

Case-in-point – You are probably familiar with the movie actor Michael Douglas (son of Kirk Douglas) and you have probably seen more than one of his movies.  Well, Mr. Douglas was the star of a movie made in 1987 – “Wall Street”.  His famous line in that movie was “Greed is good”.   I wouldn’t know about that, but his role in that movie has come back to haunt him now, almost 23 years later.

In that movie Mr. Douglas played character  Gordon Gekko, and he won an Oscar for his performance.

Mr. Douglas and his former wife were divorced in 2000.  Their divorce settlement entitles Diandra Douglas to some of the money Mr. Douglas receives from “spin-offs” from the Wall Street movie.  Ms. Douglas has already received $6.3 million from Mr. Douglas’ other projects.

Now, with Mr. Douglas’ new movie, “Wall Street: Money Never Sleeps” raking it in at the box office, Ms. Douglas has come forward demanding a “piece of the action”.  Mr. Douglas maintains the position that as there were no plans for a sequel at the time of the divorce settlement that the new movie does not constitute a “spin-off” and thus Ms. Douglas is entitled to no further money.

While this case has not yet been decided, rest assured that much court time (and legal fees) will be spent arguing for the most favourable interpretation to the respective parties’ position.  Ms. Douglas will argue that the settlement requires a liberal interpretation of the terms of the resolution while Mr. Douglas will take the position that a narrow definition should be given to the resolution.  I have not see the wording of the actual 2000 resolution, but it would have helped if the terms at issue (spin-off) had been defined right in the wording of resolution.  This may have avoided some or all of the court battles which will inevitably unfold over the coming months.

Word to the Wise – read the terms of your resolution (Separation Agreement, Marriage Contract, Minutes of Settlement) very carefully before you sign and in moments of doubt ask yourself whether the term, clause or sentence that you are examining is capable of more than one interpretation.  If it is, ask your lawyer to give you their thoughts and suggestions to clarify the questionable phrase or sentence.

 

Have you ever needed a mechanic for your car and just didn’t know where to turn?  I bet that you called some of your friends; you looked in the yellow pages or “googled” companies in your area and then checked their websites.  You followed up with telephone calls to determine what their hourly rate was and how long a waiting period before you could get your car serviced.  You determined if they have emergency services available, and whether they can pick you up at work and take you back, which, while not crucial to the maintenance of the vehicle is a perk which can sway you in the direction of one over the other.  All of these are factors that are important in determining whether that mechanic will suit your needs.  Once you processed all of that information you likely made an appointment with the best suited mechanic.  In taking these steps you are trying to make sure you get the best person to handle your vehicle; one who is that perfect “fit” for your car and circumstances. After all a good mechanic is worth his weight in gold! 

Choosing a lawyer should require the same type of questions

If possible you should choose a lawyer who specializes in Family Law.  This dedication to one field means the lawyer has become an expert in that field and is able to quickly assess your situation. You may also want to ask whether the lawyer you are considering has had dealings with the lawyer who may be representing your spouse.  It is generally good for the lawyers involved to have mutual respect and understanding between them which can assist in negotiations between lawyers. 

Your first step should be to:

Seek information from others who have already gone through the process and ask them how they liked their particular lawyer or even the lawyer who was acting for their spouse. Ask someone you trust and not necessarily just someone speaking out in the local coffee shop.  I have one friend who I can always turn – doesn’t matter whether I’m looking for a plumber or a decorator, she’s always “got a guy”.  I’m sure you also have your contacts.  If not, check the local law association or even the lawyer who handled your house transaction.  They may be able to recommend someone to you.

Questions to ask include:

  • whether the lawyer or a member of his team were easily available to clients,
  • what the rates charged were,
  • how long it took to resolve the case
  • whether they felt overall that their lawyer had performed well and done the best job possible for them.

Once you have decided on a lawyer or law firm, you can make a telephone call to the lawyer of your choosing to arrange your initial interview.  You should ask at that time what the initial consultation fee is and are there are any papers you need to bring with you. During the interview you can determine if it is the right fit for you.  You must be comfortable with your lawyer. You may not like what he or she is telling you but you must have a sense of confidence that the lawyer knows what they are talking about, that they have a good grasp of the family law concepts and that he or she has your best interests in mind.  Consider whether the lawyer appears to be more aggressive than what you would like; or whether they appear to be open to negotiating with counsel or considering other alternatives such as mediation or arbitration if those options are suited to your particular case.

You may also wish to look at whether the firm is technologically up to speed, particularly if your work style involves mainly working with information through your Blackberry, laptop or otherwise. 

Once you have completed the initial interview you can then decide whether or not you wish to retain that counsel or continue your search.  If you are unsure of the legal advice provided to you or the style of the lawyer you met with, it is open to you to get a second opinion, much like you would if you were considering a particular medical procedure.  Justice Harvey Brownstone notes in his book “Tug of War” “once your lawyer’s advice has been confirmed, follow that advice.  The reason you hire a lawyer in the first place is because he/she has the knowledge and experience to advise you of your rights and obligations.”  Continuing to seek a lawyer who will simply tell you what you want to hear will be a costly yet ineffective exercise.

So whether looking for a mechanic or lawyer follow the same steps and hopefully you will be able to find that perfect fit for you, a person you can in turn feel comfortable recommending to another.

In my last blog article, I reviewed the process of arrest and release in relation to a client charged with an assault charge and how such criminal process may impact on family law/separation issues.

The next event in the criminal process is the first appearance in criminal court. The first appearance court is exactly as described, a court to handle criminal charges at first instance. The first appearance court is held for two purposes:

–      To provide the accused with crown disclosure, and

–      To move the criminal charge along, by adjournment, to the next event

The crown disclosure consists of copies of all documents in possession of the police, which relate to the charge, namely:

–       A synopsis or summary of the facts surrounding the charge. The synopsis is used by the crown as the information provided to the court in the event that the accused enters a guilty plea.

–          Any written statements provided by witnesses or the complainant (alleged victim).

–          Copies of the occurrence notes of any peace officers involved in the laying of the criminal charge.

–          Copies of any documentary evidence

–          A copy of the release the accused’s undertaking and criminal information (charge) form

–          A crown screening form sets out the crown’s sentencing position in the event that the accused enters a guilty plea either before or after a trial. The crown screening form is not necessarily the final sentencing position the crown may take on a plea as the crown has not yet had the benefit of any plea negotiations or defense evidence.

The crown disclosure brief is prepared shortly before the first appearance court and is physically provided to the accused and/or his counsel at the first appearance court date.

The police force laying the charge has the responsibility of organizing the crown disclosure brief. Given the timing of the preparation of the brief, it is, for the most part, difficult to have substantive resolution discussions with the crown attorney in relation to the charge until after the first appearance court.

Most criminal charges are, at the first appearance court stage, adjourned to allow the accused and his counsel to review the crown brief for accuracy and for the purposes of defense counsel providing the accused with an opinion on possible defenses to the charge.

Preliminary resolution discussions can, however, take place at the first appearance court in that there is a resolution crown present who can review the charge with defense counsel. In the event that a release condition needs to be varied (ie: allowing the accused contact with the complainant through his or her lawyer for the purpose of arranging access to the children) the release variations can be negotiated with the resolution crown at the first appearance court. If such negotiations are successful, a release consent variation form is completed detailing the variation to the release document. The form is signed by both the accused and the crown and the release variation is then spoken to in the first appearance court.

Once the above noted issues have been addressed in first appearance court, the charge is normally adjourned for three weeks to one month to another first appearance/adjournment court. During that time, arrangements are made for a crown resolution meeting via telephone. The purpose of the crown resolution meeting is to attempt, if possible, to resolve the charge either by a guilty plea to the charge, a lesser charge or some alternative consequence, with the consent and support of the crown by way of either a joint sentence submission or peace bond initiative as described below.

In the event that, after review of the crown brief, the accused is not prepared to explore a resolution to the charges, the focus of the crown resolution meeting is to address trial procedural matters in order to determine the length of the trial.

The next blog article will deal with the process of plea bargaining the assault trial.

I belong to a singing organization Barrie Huronia Soundwaves, a chapter of Sweet Adelines International, a barbershop singing chorus.  We are made up of some 75 women of all ages.  Many have been through a divorce and are either happily single or happily involved in another relationship.  It seems that whenever we sing the song “I Will Survive” that we join as a sisterhood with our heads held high, chests out, feet firmly planted in a proud stance.  You can feel the group gaining strength with each line of the song, with a rousing chorus of  “I’ve got all my life ta’live I’ve got all my love ta give an’ I’ll survive, I will survive!”

It is funny how connected our lives are to music.  I used to say that Reba McEntire’s rendition of “Is there Life Out There” was my theme song – someone who had married at 20 and was just wondering if there was something else out there.  I would also play Patsy Cline when I was sad (much to my daughters’ dismay) or throw on Grease to sing and dance to. (yes I’m a little over the hill). On September 11th, 2001, I just listened to Leonard Cohen over and over, not so much for the words but for the soothing tones of his voice and the flow of the music.  It was very calming in such a traumatic time in the world.

I’m sure you too can identify certain songs with certain times in your life. Songs that remain a constant throughout the years and bring back sweet memories or memories of ones you have loss but remain dear to you.

The time is now to make new memories.  Find some music that will make you laugh or cry. Dance to the music – as they say – like no one is watching (one good way to lose weight!).  Make some musical instruments with the children (margarine tubs with plastic lids filled with rice to shake, pots to bang, wax paper over tin cans to drum) and let them join you. Sing Out Loud –again -as if no one is listening.

Your stress should melt away and help you face another day – you too will survive! 

My husband has learned to tune-out my complaints when we watch popular programs such as Law & Order or other legal-based dramas.  I am sure that I am not alone in my frustration with the misleading idea that any legal system, be it American or Canadian, can resolve issues as quickly as they do on those TV programs.

I often have to remind clients of the differences between Canadian and US laws, not to mention reality v. TV.  We use different terminology in Canada.  For example, your legal advocate here is called a “lawyer” not an “attorney” and maintenance paid to a former spouse is called “spousal support” not “alimony”.

However, when I was recently directed to the website of Pincus Family Law, a family law practice in Columbia, South Carolina, I felt the message I read on her website was universal.

The following is reprinted, with permission from Monet Pincus, and is a “Canadianized” version of what was I found on her website.  It has been amended to reflect the different terms, documents and general process used in the practice of family law in Ontario.

 CLIENT EXPECTATIONS (REALISTIC OR UNREALISTIC)

ABOUT US:

We do not work on the weekends and do not provide emergency numbers for the weekends.  There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.

Do not think we are perfect.  We make mistakes.  We are competent lawyers and law clerks, but we make mistakes.  We will correct a mistake if we find it or if you point it out.  Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.

We will return phone calls in the order they are received and based on the priority of the situation.  If you leave a message, your message will be passed on to the lawyer.  Calling three or four or multiple times in a day will not get your call answered any faster.  Email is the quickest way to get a response from a lawyer.

Lawyers work by appointments.  Please do not show up at our offices to speak with a lawyer without an appointment.

Please utilize our law clerks to answer your questions and give you status reports.  Our law clerks are very experienced and can, most of the time, respond to your request.  We bill our law clerk time at less than what the lawyers charge so take advantage of their experience and knowledge.

ABOUT OTHERS:

You may not get any consideration from your spouse for anything you have done or will do because you are nice.  You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it.

Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you.  As your lawyers, we are the only reliable source of information regarding the process and status of your case.

The opposing lawyer may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office.  It is unrealistic to expect that we can control how an opposing lawyer handles his or her file or practices law.

The legal pleadings (Application, Answer, Reply, etc.) are legal documents filled with allegations that must be pled (and some that are merely made to posture for a client).  Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf.  It is not worth it.

We cannot control the court’s schedule or docket.   The courts schedule cases as they are processed and in line with the thousands of other cases filed.   You will not be happy with the time it takes your case to get through the system.  There are thousands of family law cases filed in Simcoe County (Orillia, Barrie, Collingwood, etc.) each year and most contested cases take several months, sometimes more than one year, to finish.

NOTHING HAPPENS QUICKLY:

Generally, contested cases take several months to move through the court system.  A complicated custody or equitable division case can take one, sometimes two, years to complete.  The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, conferences, motions, discovery and pre-trial hearing.  It takes a long time to move a contested case through the court system and this will likely be your number one frustration.  We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case.  Please prepare yourself ahead of time and please do not take this frustration out on us or my staff.  We are doing everything we can to move the case along. 

What you can expect during a Trial (Contested Case)

COURT APPEARANCES—The family law lawyers at Barriston generally work files independently.  However, at court appearances, it may be necessary for one to cover a court appearance for another lawyer.  We will try to give you advance notice if your “lead” lawyer will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.

EXAMINATION FOR DISCOVERY—this is the “formal” name for exchanging information through the request for documents and questions.  Discovery has its own set of rules and deadlines which we will inform you about during the process.  A court reporter must be present and is paid to attend as well.  The lawyers are paid to attend as well.  Examinations for Discovery are costly.

CHILDREN—Marital problems are terribly difficult for children.  Do your children a favor and do not “poison” the minds of your children against their other parent.  Do not speak about their parent’s faults to children.  Do not complain to your children about how much child support you are paying or how little child support you are receiving.  Access with parents is NOT a bargaining chip or game.  Each parent is entitled to access with their children.  Children are not your property.  They are not your pawns.  They are absolutely not your messenger.  They are innocent individual human beings that need both of their parents, not just the “best” parent.

CHILD CUSTODY CASES—You should behave as though a detective and camera crew were following you and recording you and your conversations at all times.  Do not do anything that you would not perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.

LAWYER’S FEES—in a child custody case, you could spend the price of a car in lawyer’s fees.  Most contested custody cases run upwards of 10-20 thousand in fees paid out over the course of the case.  This usually includes lawyer’s fees, psychological fees and expert witness fees.  In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets.  Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value.  A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in lawyer’s fees over the life of the case.  The most expensive part of the case is going to be trial preparation and attendance costs.  That is why a trial retainer (an “up front” payment) is required in all contested cases.  You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.

Family law reform is underway in Ontario. Reform of “the way we do things” that is.

Normally, when parties separate, they turn to the court system if they are unable to negotiate an agreement themselves with respect to the many issues which they may face. Often, they consult a lawyer whose main emphasis is to bring the matter to court or threaten court if negotiations are not going well. For many years, most family law professionals have understood that the adversarial system represented by the Court is not the best system to deal with the sensitive, emotionally charged issues surrounding the trauma of separation. Even when people go to court they most often do not end up actually having a trial, as more than 90% of cases settle before trial. We often wonder why does it take people that long to come to an agreement? To that question there is no easy answer, but we certainly know that when they get that far along in the process, the parties have spent tens of thousands of dollars, dollars which they cannot really afford.

Several years ago, Alf Mamo, a prominent lawyer from London, Ontario, was commissioned by the Provincial Government to study the family court system and to make recommendations specifically around Family Court. Alf’s report was submitted to the Government and then nothing happened.

Last November, the Ontario Bar Association’s Family Law Section, the ADR Institute of Ontario, and the Ontario Association for Family Mediation along with several other professional groups including the Collaborative Lawyers Association for Ontario, put together a program in an effort to flesh out and examine practical ways of dealing with the issues set out in the “Mamo Report” as it has come to be known. I was honoured to be one of the co-chairs of the program which was held during November 2009. We gathered together about 120 people for two days of workshops and asked the groups to examine how the system could be improved and to make recommendations that would be embodied in a report to the Provincial Government. The attendees were from a variety of different professional groups – lawyers, mental health professionals, members of the judiciary, members of the public who had experienced first-hand the workings of the existing system, professionals within the various ministries of government who deal with family court issues on a regular basis, representatives of different cultural and academic groups, law professors, and anyone who had an interest in process reform.

The results were rather surprising in several senses: First almost all groups agreed that for the vast majority of cases involving family breakdown, the adversarial system was not the best system. Secondly, the provincial government under the Attorney General’s leadership, took a very active interest in the process and promised to implement the recommendations if that could be done within the confines of provincial budgets. Third, although not very surprising, the recommendations which came out of the workshops were excellent. What was surprising is how well they were received. Now the provincial government is trying to implement family law process reform across the province and many of the recommendations are being seriously considered.

What does all this have to do with mediation and arbitration? Well, the answer is fairly simple: Almost all groups recognize the advantages of mediation. If done properly, mediation can protect the parties’ interests while at the same time saving them tremendous expense both in terms of money and in terms of emotional trauma. Mediation affords people the opportunity of dealing with their emotions while at the same time rationally handling the financial and child related issues involved in every separation.

As importantly, other approaches to dispute resolution such as collaborative law are being recognized as excellent methods of achieving agreement through empowerment.

The provincial government is now dedicated to providing separating couples with information and advice on how best to handle their specific issues – information leading to a better method. Providing people with information and with knowledge is the key to breaking down the automatic adversarial system.

While there will always be cases and couples who need to go to court to have their issues resolved, the vast majority of couples who do turn to court and don’t need to may now be given that information and may now begin to approach their problems in a much less adversarial manner, which can only bode well for the children who also must live through the breakdown of their families.

To learn more about how mediation and other methods of resolving the issues surrounding your separation can help lessen the financial and emotional impact upon you, please contact our office and we will be pleased to provide all the information you need.

“Billy has decided not to live with his Dad.”

“I’m not sending Suzy for access anymore. She doesn’t want to go to her Mom’s.”

I frequently hear comments such as these when speaking with clients about their children’s living arrangements after separation.

And when I do, I am faced with these questions:

  • Can a child choose where he lives after separation?
  • Can a child set the schedule for access?
  • What if they won’t go to the other parent?
  • Is there a magic age at which a child can decide which parents to live with?
  • Is there an age when a child can refuse to go see their father or mother?

Despite the ending of their marriage, parents need to continue to parent their children together. (That is unless one parent cannot care for their child for reasons such as family violence or addiction issues.) Collaborative parenting includes making important decisions in tandem regarding their children’s well-being, including decisions about their living arrangements and schedules. It is crucially important to help parents focus on finding a cooperative solution to these issues.

The best plans for children post-separation are most often the ones jointly created by the parents, who best know their children. Getting on the same page regarding major parenting issues for the sake of the children (even if you agree on nothing else) can make a huge difference on the emotional well-being of a child after parents separate.

Children should not be asked to decide where they want to live; nor should they become responsible for making decisions around scheduling family time post-separation. Parents should treat these issues like they treat decisions about whether their children should attend school; it’s just something that a child should not decide! You might want to have open discussion about how the child may feel about school, but the decision itself should be an adult one. The same can be said about decisions regarding a child’s residence and the organization of a child’s time with parents after the family separates.

Legally speaking, children cannot choose which parent they want to live with, or want to stop seeing. When parents seek the Court’s assistance to determine this, the legal test is ‘what is in the child’s best interests’. In determining best interests, judges must consider a number of factors, one of which is the child’s views and preferences. Children can be canvassed regarding their wishes around these issues, but they are not asked to choose. Their view is only one of several factors the court considers.

Most parents are looking for an exact age at which child can chose. There is no set age in law, however the older the child the more weight his or her opinion will be given regarding their residence and access schedules.

In looking at the case law, the wishes of children fourteen and over are normally determinative in child custody disputes. This is primarily because at that age, if a child does not like things, he or she can simply hop on a bus and go to the other parent’s home. It is unlikely that a judge would order a teen to see a parent, or order a fourteen year old to adhere to a particular schedule of access against his or her wishes.

While a fourteen year-old child is the more likely to be listened to when expressing his or her wishes, a child’s emotional and intellectual sophistication may also come into play when a judge hears the child’s views and preferences.

A child’s living arrangements are never carved in stone, and children can change their minds like we change the channels…so, if Billy’s not going to go to Dad’s, listen to what Billy has to say about the issue. Tell him you will consider what he has said and that you and Dad will talk about it. This reinforces to the child that, even though you are separated, you will continue to respect one another as parents, will share parental responsibility and will not give over parental decisions to the children.

Growing up, I was (and still am) extremely close with my grandparents. I spent entire summers living with them as a child; and later, lived with them during my last two years of law school. I’m sure many grandparents would be surprised, as my grandparents surely would be, to learn that following a separation and/or divorce, they would not necessarily have an automatic right of access to their grandchildren.

The law allows a parent or “any other person” (e.g. a grandparent) to apply to the court for an order regarding custody or access.

While the law recognizes that it is usually a benefit to a child to have access to his or her grandparents and extended family, generally speaking, grandparents do not have an automatic right to access to their grandchildren, nor do they have an automatic right to maintain an ongoing relationship with their grandchildren. In most cases, grandparents are viewed as “legal strangers” and are expected to establish and maintain a relationship with their grandchildren through their own child. If their own child refuses to allow them access, the grandparent must prove to a court that access is in the children’s “best interest”.

The law places the responsibility on grandparents to prove that access with their grandchildren is in the children’s best interests – it is not for the parent to establish otherwise. If the parent objects to any access between grandparents and the grandchildren, a court will be reluctant to grant access. This is because courts are hesitant to interfere with a custodial parent’s decision unless it is in the children’s best interests to do so. Where there is a high level of conflict between the grandparents and the child’s custodial parent, a court will rarely decide that the child’s best interests will be served by granting access to the grandparents.

While there are no iron-clad rules to establish what is in a child’s best interests, Ontario legislation provides the following non-exhaustive list of factors for a court to consider:   

  • The love, affection, and emotional ties between the child and the person claiming access to the child, other family members who live with the child, and people involved in the child’s upbringing;
  • The child’s views and preferences, if they can be determined;
  • The length of time the child has lived in a stable home environment;
  • The ability of each person applying for access to provide the child with guidance and education, and the necessities of life;
  • Any plans for the child’s upbringing and care;
  • The stability of the family unit;
  • The ability for the persons applying for access to act as a parent; and
  • The relationship by blood or adoption between the child and the persons applying for access.
  • Further, in the circumstance where a grandparent has acted as the primary care-giver to their grandchildren for a significant period of time, a court might be willing to grant access to the grandparent(s) e.g. every second weekend.

Thus grandparents must establish that access to them is in a child’s best interests, which requires consideration of numerous factors.

The above information is simply a general overview of the law and is not meant to be relied upon as legal advice. Those thinking about applying for access should consult a lawyer and speak about the specific facts of their case.

If you have been following the “Matrimonial Matters” blog written by my two colleagues (Cathy and Evelyn), you will see a general pattern with respect to the explanation of each individual section of Form 13.1 – Financial Statement. 

While this document is considered to be one of the most important documents with respect to family law, it also is the most tedious as well as intimidating documents to our clients.  First and foremost we point out to our clients, the importance of this document and the fact that we are available to assist with the completion of the financial statement.  We also point out that this document is a sworn document and is no different then swearing an affidavit.  By signing this document in the form you prepare, you are swearing that all of the contents are true to the best of your knowledge.  If at some point it comes to the attention of your lawyer or a Judge that you knowingly did not disclosure certain assets, your credibility will be completely destroyed and this will drastically change the outcome of your file.   

Part 4 (c) – This section relates to bank accounts, savings, securities and pensions.  The form itself offers three different columns.  The first column is the “date of marriage”, the second column is the “valuation date”.  The valuation date is also known as the “separation date” and the third and final column is the “current value”. 

All bank accounts, savings, securities and pensions must be listed in this section, even if you hold the account in trust for a child or elderly or incapacitated person.  If your name is on the account, it must be listed.  If the account is held jointly then only 50% of the value of the account is noted.  If an account is in your name alone then the entire amount is listed in the relevant columns.  If accounts were opened prior to your marriage and are still in existence at separation or after, then all three columns should be completed together with the relevant back up documentation.  It is very important to have the back up documentation to prove your claim as to the assets you held at the various times.  If you have opened a new bank account after separation, it also must be disclosed and the value entered in the “current value” column.  Again the relevant back up documentation is required to prove your claim.  Remember it is up to you to prove your assets.  An asset claimed with no back up documentation is more than likely going to be an asset which will not be included in your net family property.  The same idea applies to your debts and liabilities.   

With respect to education accounts held in your name in trust for your children, we disclose these accounts in the description section of Section 4(c) but do not include the value in any of the relevant columns.  We will disclose the value, but the value should not form part of the net family property as ideally the children will be benefiting from this asset.   

With respect to pensions, all pensions should be valued by a pension valuator.  It should also be noted in the “debt” section – which we will be speaking about in a later blog, the contingent tax liability associated with the pension should be applied in the the debt section of the financial statement.   

Stay tuned for a later blog on Sections 5, 6 & 7 of the Financial Statement – Debts & Liabilities.

Many people consider pets to be members of their family. When discussing the break-down of a family unit we may comment on who should have “custody” of the pets. However, the Canadian judiciary is reluctant to engage in such discussions. In Canadian courts pets are treated as property; little different from the dishes or the dining room table.

In Ontario, when married spouses separate their property is divided by ownership, with the party having the greater net family property owing an equalization payment to the party with the lesser net family property. Technically the value of the dogs, cats, turtles, iguanas, etc. are to be assigned to the column of one spouse or the other. The property of unmarried spouses remains divided by ownership, such that if either party wishes to make a claim to the other’s property he or she will be required to do so by making ‘trust claims’. Should Fido be owned by the other party, a common law spouse may be required to bring a constructive or resulting trust to get an interest in him.

However, determining who “owns” the family pet can be tricky. Judges may consider who purchased the pet, if the pet was brought into the relationship by one party or the other, if the pet was gifted from one spouse to the other, or from a third party, who has possession of the pet following the breakdown of the relationship, if there were any agreements regarding the pet’s ownership, and so on.

There is an often acknowledged absurdity to treating pets strictly as property. You cannot divide a pet and it may not be at all appropriate to sell a pet and divide the proceeds.

Some judges will in fact consider which party has been more responsible for the care of the pet, or who is the more capable pet-parent. If the separating spouses have children the judge is likely to consider if it is in the children’s best interests for the pets to remain with them.

In recent years an increasing number of Applications are being made for custody or access to pets. Ontario courts are responding by refusing to take jurisdiction of the matter or otherwise dismissing such cases. In doing so they often reference scarce court resources and the need to keep parties’ costs proportionate to the merits of the case.

Should separating spouses decide to enter into their own Separation Agreement rather than proceed to court, they may treat the pets more creatively. The parties may determine who will have primary care of Fido, an access schedule, and perhaps even some form of financial support payment.

As long as the parties follow the terms of their Agreement no one will question treatment of the pet as more than property. The issue arises with regard to the enforcement of such agreements. Should one party or the other choose not to follow the Agreement, the aggrieved party can turn to the courts for redress on the basis of contract law. However, he or she will not be able to use some of the more useful ‘tools’ available to enforce terms related to custody and support of children. There is no Hague Convention on abduction of pets. There is no government agency who will assist in collecting and enforcement support for a pet.

Most people find the loss of a cherished pet through death, or after a separation, to be very difficult. Whether the law could ever fully recognize the importance and significance of your relationship with your pet may be worth some reflection the next time you are walking your dog, cleaning the cat litter, or feeding your ferret.