Thomas Dart, Partner, Family Law

The Action Committee on Access to Justice in Civil and Family Matters has published its report on Family Justice.  This committee was convened at the invitation of the Chief Justice of Canada, the Honorable Beverly McLachlan and is chaired by Supreme Court Justice Thomas Cromwell.  It addresses the concern of access to justice by families who suffer from relationship breakdown.

The full report can be read on line at  http://www.cfcj-fcjc.org/sites/default/files/docs/Report%20of%20the%20Family%20Law%20WG%20Meaningful%20Change%20April%202013.pdf

The report acknowledges the input from many previous reports including one commissioned by the Province of Ontario and prepared by Alf Mamo, Peter G. Jaffe and Debbie G. Chiodo entitled Recapturing the Vision of the Family Court (2007) www.books2.scholarsportal.info/viewdoc.html?id=357212 and one from a collaborative effort of many professionals and organizations including the Ontario Bar Association, Family Law Section, entitled Creating a Family Process that Works: Final Report and Recommendations from the Home Court Advantage Summit (2009) www.docstoc.com/docs/39516572/Submission-to-Attorney-General-Chris-Bentley-CREATING-A-FAMILY.

As this report notes,  “Family Law has a very broad reach. There is probably no single area of law that touches as many people. The quality or adequacy of a family’s encounter with the justice system can shape their lives and influence their well-being for the long term.” (from paragraph 13 Conclusion).

Yet politicians at both the Provincial and Federal level continue to ignore and thereby under fund the family justice system. They have the repetitious recommendations of numerous experts. In other words, the answers are there for implementation. All that is needed is the political will  – which for some inexplicable reason continues to be focused primarily on criminal law and imprisonment of repeat offenders, even though statistics tell us that crime rates are actually dropping.

Relationship breakdown is not dropping, in fact it continues to increase and continues to impact many other government agencies as a result. When will the governments find the funding and the resources to assist families and particularly children who are experiencing this kind of family trauma?  We know that children from divorced and separated families are at risk unless the family breakdown is  handled in a manner which reduces conflict between their parents. Yet we continue to place emphasis on adversarial court based solutions as the best service to these families.

Courts are overburdened. Not enough judges, administration and court staff are in place to satisfy the demand. In some locations in our Province it can take four to five years to get a case to trial. Needless to say the financial cost and emotional stress placed upon a family over this course of time is devastating.  Judges, court staff and government administration are performing heroic tasks in trying to deal with the tremendous volume of cases flowing through the court system.  

As so many recommendations have proposed – the answers to these problems begin with the premise that family breakdown is not just a “legal issue”.  Why should people who are suffering from the emotional stress of a marriage breakdown not first be given the assistance of non-legal professionals to handle this type of stress? Lawyers aren’t social workers. Good lawyers recognize this and try to divert their clients to the counselling they need  before they can fully contend with legal issues.

Many people can be assisted with non-court based solutions for the problems they are facing. Mediation, collaborative law, arbitration are all process that can be tailor made to the needs of the family. These process inform and educate the parties about the many facets of their relationship breakdown.  The report recommends a ‘triage’ approach, that is streaming of people to the appropriate service.

As the report notes, simplifying the law can also bring a huge benefit to many people. There are many complicated issues arising from the application of our current law. Complexity leads to uncertainty and to more financial loss.  Creative legislative solutions to this complexity should at least be considered.

Insofar as the court system is concerned, the report once again repeats the need for One Unified Family Court with specialized judges who are devoted to managing and adjudicating family law matters. One case to one judge – a “vertical” system of case management as opposed to the current “horizontal” position. That is one judge manages the case from beginning to end. This provides consistency in application, less uncertainty about the result and less cost.

 It is difficult to understand, in this age of complexity, why there is so much resistance to having a specialized court. Many people  who enter the justice system simply expect that the judge who adjudicates their matter will be a specialist in their area of law. They are often very surprised to learn that this is not necessarily the case, through no fault of the judge. The reasons of course have to do with the underfunding of the justice system generally.  Judges can’t be specialized because there are simply not enough of them appointed to handle just family law cases and judges who do not have a strong familiarity with family law cases have to step in to assist with the case load.  Senior Judges who are in charge of the very difficult task of creating court schedules have no choice at present but to manage the load as best they can with the people they have assigned to them.

There is already in Ontario a good model for a specialized court. The Ontario Court of Justice, criminal and family branch are essentially specialized courts. In the areas of the Province where they are located, each has demonstrated how a specialized system can enhance the court based justice system.  However, even these courts are underfunded and have difficulty handling the tremendous volume of cases facing them. Nevertheless, these courts do handle them and handle them as well and as efficiently as they can with their limited resources.

The report has many other very good recommendations, so many that it is impossible to refer to them all in the brief time I have to talk about it. Please read the report. Please begin the lobby of your local politician to make change. Unless we speak loudly and often, we won’t be heard. The answers are their action. Federal and Provincial co-operation is  vital – can we make that happen? I think we can – we need to, for the sake of the many families and children who are so dramatically affected by a relationship breakdown.

Catherine Hyde – Paralegal

Tis the season, and no I don’t mean Christmas. You have made it through the winter activities ofbear meal.jpg hockey, figure skating, dance, music.  Now the days are getting warmer and longer. Your schedule though often becomes busier as you now have soccer, baseball, ball hockey.  There are wrap-up parties for your winter activities, end of school etc.  Soon there will be summer camps, more sleepovers, chauffeur duties for children to meet friends at the movies or mall.  You may find that you spend more time in the car than you do anywhere else with your family.  No doubt you notice more fast food wrappers in your car.

Where am I going with this?  I’m sure you have heard the statistics that show that families who eat together have better eating habits, better academic success, and are less at risk for obesity and substance abuse.  In addition, children can learn table manners, family traditions and the art of conversation.  Whether or not you are divorced parents, the madness is well known to all.  It can be even crazier though when you factor in shared parenting routines or one mid-week visit and alternate weekends or perhaps the new spouse has children and they have a different schedule for their children.  It takes a drill sergeant to keep everyone on schedule. Many families may wish  to have more meal times together but find themselves going non-stop all day and don’t know how to fit it in.  They worry they are not that typical family as it is and don’t wish to further stress everyone by trying to enforce meal times.

Firstly, it doesn’t have to be every day. It doesn’t have to be at dinner. Not everyone has to be there each time – just as many as you can manage. You can tailor it to what works for your family.  Maybe you have time for breakfast together.  Maybe you can take a picnic basket to the soccer game and eat in the park.  It doesn’t have to be stressful.  Know that it may not be perfect but do the best you can.  Try to make it fun for everyone.   Try starting conversations that will require more than a yes or no answer.  Perhaps have everyone tell one good thing and one bad thing that happened to them that day.  It helps you get to know your children better and hopefully you will share some laughs. 

Secondly, look at your schedule.  Are the children over-scheduled?  Are you?  Is there something that you could decide not to do in favour of more family meal times?

Thirdly, plan.  It does take some work but with some planning you can have some fast easy meals ready to go on those nights that you do all have to leave in a hurry.  For example, you can prepare a roast chicken or roast beef for a weekend meal, and have the leftovers in a stir fry or casserole for a weeknight meal.  You can double a recipe so that you have one meal to eat and one to freeze for another night.  You can cut up some of the vegetables the evening before or on the weekend.

Fourthly, ask for help.  It doesn’t all have to be up to just one person. It can be especially difficult if you are a single parent. Perhaps a grandparent or friend could contribute a meal or have a standing night you go over to have supper at their place. The children can do age appropriate chores including washing vegetables, fruit or setting the table.  Children who are involved are more likely to eat what is prepared.  If you have an older teen they can perhaps start the dinner for you if you have left a note to make a salad or do other prep work.  Post a schedule of the meals for that week so that if someone is home early they know what they can do to help out.  Have the children plan a meal once a week and help with grocery shopping.

Most importantly, all phones, tablets and other electronic devices are off for the meal time.  No television distracting everyone from making conversation. Your attention is one on one with the other members of your family.

Keep in mind that there are nights you will wonder why you are trying to do this as someone doesn’t like what is being served, or are just in a bad mood, but remember, you are teaching your children that they are important to you and you enjoy spending time with them giving them your full attention, no matter what. 

The added benefit is the fact that your children will be happier, healthier and have improved academic and social skills.   I bet you will get the same benefits plus more money in your pocket, less time in your car, and lots of good memories. 

Barrie Hayes, Partner, Family Law.

The admissibility of audio or video tape recordings are, like  any other potential evidence , to be ruled on by a judge. In determining the admissibility of any evidence a judge will consider the basic evidentiary concepts such as; Is the evidence relevant or material to the issues being tried? Is the evidence necessary to the proper determination of the issues being tried? Is the prejudicial effect of the admission of the evidence in question outweighed by the probative value of the evidence to the issues being tried?

Section 184(1) of the Canadian Criminal Code provides that it is illegal to willfully intercept(record) a private communication. This prohibition, however, does not apply if either the originator of the communication or the person intending to receive communication consents to the recording. As long as the person recording the conversation is a party to the conversation the recording is not illegal.

Even if the tape recording has been obtained illegally (i.e. the person recording the conversation was not a party to the conversation), the Family Courts have sometimes admitted the illegal tape recording as evidence.

Although the courts have consistently stated that illegally obtained tape recordings are repugnant to the court and should be discouraged as counterproductive to an amiable settlement of a separation, in child custody cases where the court has felt that the probative value of the tape recording in assisting the court in determining the best interests of the children outweighed the prejudicial effect of admitting the evidence the court has admitted the evidence.

The admissibility of the tape recorded evidence will depend on the particular circumstances of each case.

The accuracy or reliability of the tape recording is sometimes an issue in determining admissibility. In the event that a tape recording is made it is recommended that a transcript of the recording be made.

By Douglas J. Manning, Partner, Certified Specialist in Family LawSkull Tree.jpg

Statistics reveal that fewer and fewer couples are choosing marriage and therefore more and more couples are choosing to live in common-law relationships.  Perhaps they think it will be less complicated if things don’t work out and they decide to go their separate ways.

Now, there is a small, but growing, movement to avoid emotional entanglements altogether and live life alone. But what happens if a person (man or woman) wants to have a child or children yet has no interest in partnering with the person whom they choose to “join” to create a child?

Yes, there is invitro fertilization and artificial insemination; sperm donors and egg donations, but what if you want to raise the child with two parents, just not at the same time and in the same place? There is a small but growing movement of people seeking others to share the financial, social and emotional responsibilities inherent in raising that child but without the romantic and relationship issues.  These potential parent-pioneers consider co-parenting much in the same way that separated parents split up the child care responsibilities and parenting schedule but without all the disentanglement issues that arise when a couple splits up.  These “parenting couples” are bypassing the marriage part that usually comes before the children arrive on the scene.

Individuals yearning to be a parent but without the traditional relationship building that usually precedes the act of procreation can search out other, similarly-minded individuals at websites such as Modamily.com where they can connect with potential parenting partners.

A number of people who consider this type of parenting option are usually in their late 30’s or 40’s and have dedicated what might be considered the traditional child rearing years to obtaining an education and career development and advancement.  Now that they are where they want to be career-wise they don’t wish to waste their time (or they are uncomfortable with) the traditional methods of seeking out partners (what used to be called “dating”) or they have decided that they don’t want to complicate their lives with emotional entanglements though they are willing to take on the responsibilities of raising a child though with help through sharing the commitment with the other half of the creation couple.

Other websites dedicated to individuals looking for this non-traditional path to family “creation” include Coparents.com and MyAlternativeFamily.com.  Those looking for a parenting match on these or similar websites are asked to complete a profile with questions more geared to their parenting styles and philosophies of child raising than the typical types of questions one finds on dating sites. The questions are more about lifestyle, beliefs and values than eye colour, income and height.  Other obvious considerations in looking for a co-parenting partner would include how much time each parent is going to dedicate to raising the child and how far away they are going to live from each other.  If each parent has a vision of equal time with the child on, say, an alternating week basis then they probably can’t live in different provinces and probably ideally should be living in the same community or at least nearby.

What happens when the child becomes of school age? – Will he or she be able to attend the same school throughout the school year? Will both parents have to live in the school district?  What about medical and dental appointments? – will the parents agree to use the same dentist and doctor to ensure consistency in these services for the child?

As you can see there could be an additional layer of complications in attempting to co-parent a child from a distance and we have not yet considered the long term consequences for the child.

Have you figured out how a marriage and a horror movie are alike?

  1. They both cost a lot of money;
  2. They both involve a lot of screaming; and
  3. In both, usually, only one person survives at the end.

Catherine Hyde

Paralegal/Clerkhousekeeper.jpg

 As we turn the clocks ahead and the first day of spring fast approaches, in Family Law we know that there will soon be an influx of new clients.  It is a strange phenomenon that spring cleaning, throwing out old items, washing all the walls and cleaning rugs, includes “sweeping out the spouse”. Just as you prepare for the spring cleaning by getting all your supplies in order, it is necessary to also prepare for divorce.

When meeting with clients to discuss the possibility of divorce, lawyers have a duty, under section 9 of the Divorce Act, to discuss the possibility of reconciliation and to inform the spouse of marriage counseling or mediators or facilitators who might assist.  They also have a duty to discuss alternatives to Court including negotiations, mediation and arbitration.

So it is a twofold question. Firstly, is this something you really want to do? Secondly, if so, are you prepared?

As to the first question, we live in such a disposable society, and a society that insists we all need to be happy all the time that often people simply decide to get divorced because it is too hard to stay together.  Couples  should first explore all the avenues  to see if the marriage can be saved and if they want to save it.

Before taking that final step of divorce, you need to ask yourself certain things.  Do I still love my spouse and what does that mean? Where do I see myself in 5 years, 10 years? Do I see my spouse in that picture? Am I so caught up in my work/career that I am not available to my spouse and family and why is that? Affairs are often blamed for divorces however they are only a symptom of a marriage in trouble, they are not usually the cause.  What is actually going wrong in the marriage – are we fighting about money, extended family, division of responsibilities.  Can these be worked out?

Once you have done some soul searching as to the cause of your discontent what can you do about it?  Firstly you should find a time to discuss the problems in the relationship in a non-confrontational manner with your spouse and make a plan. You can suggest that the two of you seek out marriage counseling, speak to your church leader, or doctor to see if they can help you sort through your problems or recommend someone that can.  It may be that you are dealing with emotional issues either from your childhood or past relationships that will need to be sorted out as well through individual counseling.  Ask yourself if it is worth it to you to explore these in order to save the marriage.   You have to be willing to make the effort. 

A divorce is one of the most crucial decisions you will make in your lifetime, particularly if there are children involved.  Although it is not wise to stay in a bad marriage just for the sake of the children, you also need to be sure that divorce is the only answer before you make that move. Remember the grass is not always greener on the other side.  You need to consider how your life will change in terms of your lifestyle, finances and emotionally what the affect will be.

It is an interesting statistic that most second marriages do not last.  This is largely said to be because individuals have not dealt with the emotional issues or learned from the mistakes of the first marriage but simply repeated the pattern.  In addition, there are often children from one or both of the partners to add to the mix.

Once you and your partner have explored the different issues and determined that divorce is the best answer, the second part comes into effect. You will need to prepare yourself.  You can do this by:

  • Getting some counseling in advance to help you work through your own issues
  • See a lawyer to determine your rights
  • Discuss financial matters with your financial advisor so that you have a good picture of the family finances

Although you will be sad at the marriage ending hopefully having explored all the avenues and still determined this is the best path, both of you can work through an amicable divorce, knowing that this is the best process for both of you.  In those instances parties can often work through a collaborative divorce or mediation process rather than through the courts. 

So remember although there can be an old piece of furniture that seems worthless now, a good coat of paint and new hardware can often repair the item, repurpose it and make it into something beautiful.  The same applies to relationships.  Don’t be too quick to “sweep out the spouse”.

Barrie Hayes, Partner

In many marriages the matrimonial home is the most significant family asset owned by the spouses. The Family Law Act (“FLA”), in dealing with equalization of net family property on separation, provides special treatment of the matrimonial home.

Whereas generally  a spouse may deduct from his or her net family property the (net) value of the property he or she brings into the marriage, this deduction of property does not extend to the matrimonial home. Further statutory exclusions from family asset inclusions such as inheritances or gifts from third parties do not extend to the matrimonial home.

In situations  where parents purchase a home for a child or grandchild, and wish to protect the home from being included in the equalization of net family property in the event of marriage breakdown consideration should be given to using a trust to protect the home from a potential FLA claim.

In the recent case of Spencer v Riesberry a home was purchased and was settled on a trust for the purchaser and her four children. Three additional properties where subsequently also settled on the trust. One of the terms of the trust was that any trust property distributed from it was not to form part of the recipient’s net family property for purposes of the FLA.

When one of the daughters who occupied one of the homes settled on the trust separated the court was asked to determine whether the daughter had an interest in the property sufficient to warrant a finding that the property was a matrimonial home. The Court of Appeal held that, unless the terms of the trust expressly provided otherwise, a beneficiary has no property interest in any specific asset of the trust, prior to or absent an appropriation of such assets to the beneficiary by the trustee.

The court considered the daughter’s dual role as beneficiary and as co trustee of the trust and held that occupying those positions did not provide the daughter with an interest in the home for the purposes of the FLA.

I know better, I really do.

My children are both four years old and they are both signed up for gymnastics every Sunday morning.  They love participating and I love watching them.  What I don’t love is trying to get them ready and out the door on time.  You’ve heard the expression, “It’s like herding cats.”?

On this particular morning, I had slept in and we were behind schedule so I was running around like a crazy person trying to throw on my own clothes, get the kids dressed, and fill water bottles, so that I could load us all in the car for the drive across town.  At the same time, my husband was sitting at the kitchen table, with earphones in, catching up on some work he needed to have done for the following morning.  To be fair, I am quite sure that if I’d calmly asked for some help, he would have put his work down and willingly pitched in.  Instead, I decided to mutter under my breath and shoot death glares at him while suffering through another wild morning with twins.  I mean really … he does know when gymnastics starts and I’m pretty sure he also knows how to tell time!

My parenting faux pas occurred on the way to the gym after I explained to my children that they were going to be late so they would need to hurry once we got there.  My daughter asked why we were late and, without missing a beat, I put all of the blame on my husband and said, “Well, Daddy wasn’t a whole heck of a lot of help this morning.”  I honestly didn’t think too much about it.  I’ve often joked with my children about Daddy being in “big trouble” when we’ve discovered, for example, that he ate the last cookie or put the empty juice jug back in the refrigerator.  They always think it’s hilarious and when he walks in the door they gleefully inform him of his transgressions.  My daughter did not react any differently this time as she promised to “give him a piece of her mind” as soon as she had the chance.  I noticed that my son went unusually quiet though and when I asked if he was OK, he looked at me and very sadly and said, “But Mommy, I love Daddy.” 

Ouch!

I don’t know whether he picked up on my annoyance at home or whether my voice sounded angry in the car or both but he knew that this time I was not entirely joking when I complained about his dad and it did not sit well with him.  He is a particularly sensitive little guy (as I said, my daughter did not appear to have been fazed in the least) but it really hit home for me.  I spend a lot of time talking about how important it is to try to shield children from conflict during a separation.  Unfortunately, it is way too easy to slip up.  Nobody’s perfect but I know I’m going to try to be more careful.

This was just another one of those times when a rewind button would have come in extremely handy in my life.  I reassured my son that his sister and I loved Daddy too and he almost immediately recovered but clearly, what I thought was a pretty harmless remark, caused him some degree of distress.  Imagine the impact of a more direct or a nastier comment. 

In the family law context, we hear complaints about inappropriate comments being made to children all the time. They should not be privy to the statements made in a family court action, they should not be told that the other parent has “taken” all the money, and they should not be told that the other parent has destroyed the family.  Simply put, it is not okay to discuss adult issues with your children and it is not okay to make derogatory comments about the other parent within your children’s hearing.  Going through a separation is difficult enough and children do not need, nor do they deserve, any additional stress.

The lesson I learned was that my children are much more perceptive than I thought.  I also learned that, no matter how inoffensive the remark, it is never a good idea to use my children as a sounding board when I’m annoyed with their dad … luckily my mom is always willing to lend an ear. 

By Douglas J. Manning, Partner, Certified Specialist in Family Law

A recent, highly publicized, spousal support decision sheds light on how the “other half” live (and how they end up paying their support).

Michael McCain, one of the children of Wallace McCain (a wealthy businessman in the food industry) and his wife of 30 years separated in 2011.  They had 5 children, only 2 of whom remained dependent at the time of separation.  Ms. McCain had not worked outside of the home for about 26 years.

About 16 years into the marriage, the husband’s father demanded that each of his children and their spouses sign marriage contracts that would protect the assets he would pass on during his lifetime or upon his death.  Essentially he wanted his estate to remain within his bloodline and not be available to any of his children’s spouses in the event that any of them separated.  The story was the husband’s father demanded these agreements on pain of the husband being ignored in his father’s Will.

In the agreement signed by Michael and Christine McCain in 1997, Christine agreed to release her entitlement to what is called  an Equalization Payment and in exchange she would receive a fixed amount of money which was to be a maximum of $7,000,000 (and a $300,000 payment one year after the agreement was signed) and she was to receive the matrimonial home.  The wife also waived what she might have been entitled to in spousal support.

The Court was asked to order the husband to pay the wife temporary spousal support even though the Marriage Contract released her entitlement to spousal support.

The Court undertook an analysis of the facts and the law on this issue.  The Court was of the view that the release of spousal support did not meet the criteria set out in the Divorce Act when considering an appropriate amount of spousal support – such as the means and circumstances of the parties, the length of the marriage, the roles assumed during the marriage, etc..  The Court was also aware that the wife’s property entitlement was far less than she would have otherwise been entitled to if she had not entered into the agreement.

If is worth noting that the wife had independent legal advice at the time that she was given the Marriage Contract to sign and she signed the Contract in light of the legal advice she received.  Even with legal advice, the Court was satisfied that the Ms. McCain was under sufficient duress to sign the Contract that it should be set aside.  The duress took the form of her father-in-law’s threat to “disinherit” his son if the Marriage Contract was not signed.  The Court stated that the “duress was subtle and psychological, in that she appeared to be the key to the husband remaining as one of his father’s heirs”.

The Court asked the question: “Was the bargain (Contract) acceptable?”  I am not sure this is the precise question that needs to be answered.  But the Court took into consideration that the marriage existed for another 15 years after it was signed; that there were no income projections done as to what the husband might be earning in the future and no projections as to lifestyle changes that took place as the years went by.

Once the Court was of the view that it would consider the agreement as only one factor in determining whether it would order support or not, then it became a decision on what was an appropriate amount of support to award.  The Court went on to state that each spouse should be able to live in a fashion that does not require the wife to sell the matrimonial home, to use up her capital, to support her expenses.

In the result, the Court ordered the Husband to pay temporary spousal support of $175,000 per month until the matters could be more fully examined and dealt with.

The takeaway point for me from this is – don’t be too greedy in what you ask for in your Marriage Contract.  If it is found to be too one-sided and does not come close to what the law might provide to your spouse without a Contract then there is an increased possibility that the Contract might be judged to be invalid at least to the extent that the unfairness is manifest and significant.

spendthriftCatherine Hyde, Paralegal.

You have heard the expression “Love is Blind”.  This can be the case when couples suddenly discover that they have very different thoughts on how to manage their money.  During the period when you were discovering each other and falling in love you may have turned a blind eye to your partner’s spending habits.  Money, and how it is handled, often plays a primary role in the reason why couples divorce.  Often when couples do divorce we find that one party clearly has no idea what the monthly costs are or what bank accounts or debts they have as the other party looked after these tasks.

What should you do to try to avoid this pitfall?

Firstly you need to agree to meet and discuss financial matters.  This can be before you are even married, or decide to live together.  Set a time to have a face to face meeting knowing that the agenda is to discuss money. Have snacks and drinks and make it a festive event not something you need to dread.  Ensure that both parties realize that this is not going to be a shouting match, you simply want to lay out what assets you have, what debts you have and see what the other party has.  Be truthful.  Remember the other party loves you and will understand if some mistakes have been made. You want to determine if one of you tends to save their money while the other tends to spend it, and what affect that might have on your joint finances.  Make ground rules as to how the discussion will go i.e. one party can speak for 2 minutes followed by the other party and you cannot interrupt or raise your voice.  If matters get heated, then there needs to be a time out.   

It is important for the two of you to determine what your style will be.   Your way may not be the best way – there may be room for improvement. Start out with your income – what is your net monthly income i.e. your gross pay less deductions.  Discuss how you are going to pay the joint bills i.e. the mortgage, utilities, any lines of credit etc.  You could set up a joint account into which you both deposit your share of these costs.  Keep in mind that if one of you earns significantly more than the other, than the appropriate share may not be 50/50 but rather a proportionate share based on income.  Alternatively you may designate certain costs to be paid by one party. Also look at your other monthly bills for telephone, cell, internet, banking fees and determine if there are costs savings if you bundle your plans or utilize the same service provider.

Determine what debts each of you have to pay and how long it will take the pay the debt. Determine how many credit cards you really need. Are there other debts which need to be paid i.e. loan to parents and how will that be arranged.  Decide how joint purchases can be made – i.e. can one of you buy something without consulting the other or is there a price limit to that. Should you be using cash or debit cards?

Now that you have determined the fixed costs and the debt repayment plan, you should consider a joint savings account to which you both deposit certain funds each month towards a common goal i.e. a trip, furniture, down payment on a house.  Having a goal for the funds will ensure that you will save the money. Decide on a long term savings strategy such as RRSPs or Tax Free Savings Account. 

Factor into your plan an amount that each of you will have to do with as you wish.  Everyone needs some money to spend that they do not need to account for.

Draw up a monthly budget setting out the total income of both of you less all the fixed costs, the debt repayment, the savings plans, and the individual monies.

At the end of the month you should reconcile your account.  It is usually best to assign this chore to one of you.  This is not a lifetime assignment.  Each of you should take turns perhaps rotating every couple of years, unless one of you truly enjoys it or the other simply is not good at it. 

Keep the papers setting out your monthly and long term goals and your budget.  Next year, at about the same time, arrange another “date night” to review where you are at and if you need to make some adjustments in your plan.  Over time you will both feel that you had an equal hand in how your financial affairs have been handled.  Remember your budget and goals will change as your circumstances change i.e. new baby, job changes, retirement etc.

There are many good books available or computer software programs that will assist you in your budgeting and goal setting.  In addition, it is always useful to speak to your banker or financial planner to review your plan so that it can be tweaked if need be.

Communicating with each other is key.  In learning how to discuss money, you are also learning how to communicate about other important matters in your life together and hopefully avoid the pitfalls leading to divorce. 

Barrie Hayes, Partner

In my previous blog I described the formulaic calculation used by the Spousal Support Advisory Guidelines (“ SSAG”) to determine spousal support in circumstances where the parties had no children.

In this article I will focus on the SSAG formulaic calculation to determine spousal support in circumstances where the parties have dependent children.

The formula utilized by the SSAG in the circumstances is called the ‘with child’ support formula. The ‘with child’ support formula has different considerations from the ‘without child’ support formula in that priority at law is given to fixing child-support first and there are particular tax and other financial benefit issues that relate to the children. The approach to spousal support differs in that where there are dependent children the primary rationale for the entitlement for spousal support is compensatory. In fixing spousal support based on compensatory principles the focus is not on the length of the marriage, or financial interdependency but rather the presence of dependent children in the family unit and the need to provide for the material needs for those children.

The three main differences between the two formulaic support calculations are as follows;

  1. The ‘with child’ support formula uses the net incomes of the spouses, not their gross incomes;
  2. The ‘with child’ support formula divides the pool of combined net incomes between the two spouses, not the gross income difference;
  3. The upper and lower percentage limits of net income division in the ‘with child’ support formula do not vary with the length of the marriage of the spouses.

Basic to the ‘with child’ support formula is the concept of individual net disposable income (“ INDI”) of each spouse. Individual net disposable income isolates an amount of net disposable income available after adjustment for each of the spouses child-support obligation. This is done by deducting the spouses respective contributions to child-support.

Determining the payor spouse’s INDI involves establishing guidelines income minus child-support minus taxes and deductions.

Determining the support recipient spouse’s INDI involves establishing guidelines income minus notional child-support minus taxes and deductions plus government benefits and credits.

The INDIs for the spouses are then added together and a range of spousal support amount projections which would leave the lower income recipient spouse with between 40 and 46% of the combined INDI is utilized.

Needless to say the calculation of the spouses’ INDI requires computer software assistance.

Initial orders for support are indefinite in duration subject to the usual process of reviewing variation. The formula does, however, provide a durational range which is intended to structure the process for reviewing variation and to limit the cumulative duration of spousal support. There are two tests for duration and whichever produces the longer duration at each end of the range is to be employed.

The first is the length of marriage test which is modeled on the duration under the without child support formula i.e. one half to one year of support for every year of marriage

The second is the age of children test. The lower end of the durational range is until the youngest child starts full-time school. The upper end of the durational range is until the last or youngest child finishes high school.