So you think you want a Divorce? Read this first... - Feb. 12, 2009

First of all, please remember that the information given herein is not legal advice, but general information provided to help you prepare for your first meeting with your lawyer. Everyone's situation is different which means that the solution to your problem should be tailored especially for you. There is no cookie-cutter, one-size-fits-all solution for legal issues. I encourage you to contact my office if you would like to make an appointment to discuss your particular situation.


When a person first calls to speak with a lawyer regarding any family issue there are many things for them to consider.

First of all, are you sure your problems can not be resolved in other ways? It is not my job to give counseling but it certainly is a part of my mandate to ensure that you are aware of the other options out there, in particular, couples or individual counseling. There are resources out there to help you try and work things out, together.

If divorce is unavoidable, you have to think about how much the two of you can resolve between yourselves. The more that can be worked out between the parties, the less draining it is emotionally and financially. Unfortunately not everyone can work out their differences. In fact, some couples see things so differently they have a hard time being in the same room together, at least at first.

Please remember that before you attend your first meeting with your lawyer, prepare. It will make everything go that much more smoothly. When I say prepare, I mean, gather up your financial documents including bank loans and the like, your last 3 years income tax Notice of Assessment, any diary of events you may have kept and any and all documents that you think might be relevant, including any legal papers or court documents you may have received.

Please bear in mind that if custody is not an issue then the verbal bickering and mudslinging between the parties is almost never relevant and relating it all to your lawyer is probably wasting your time and money. Frankly, judges do not care in most divorce proceedings or proceedings for support who said what to who or who did what to who. And neither does your lawyer. They may feel sympathy for you, but the lawyer's office is not necessarily the best place to vent your anger at the other side. I am only trying to save you time and money when I say this.

It is only where there is a battle over custody that some of this might be relevant. Keep a diary. Pass copies of it to your lawyer every two weeks, let them decide what is relevant.

If one party is harassing or threatening the other party there is little that your lawyer can do, practically speaking. In court it is a "he-said/she-said" without other witnesses. If you are acutally being threatened with physical harm you must contact the police. Ultimately your safety is paramount and all threats should be taken seriously. They will determine whether or not charges are appropriate.

One of my pet peeves: please do not listen to rumours or take legal advice from your neighbour, unless your neighbour also happens to be a lawyer. You might be suprised how many people preface comments with, “But my friend told me that she got this...." or "Billy's mother's brother's sister said that..." Trust your lawyer to know the law. Do not ask Billy's mother's brother's sister, unless she happens to be lawyer. That is why lawyers go to school.

In addition to being prepared with your paperwork and knowing what you want, be prepared to pay a retainer up front. Retainers range anywhere from $1,000.00 on up. It does not take long to eat up several thousand dollars on one of these files. There are filing fees associated with practically everything we have to send to the courts and there is usually lots of work associated with a court application of any sort.

That is why I encourage people to resolve as much as they possibly can between themselves before going to a lawyer.

Lawyers have been increasingly encouraged to take courses in mediation or collaborative law. Some lawyers will also encourage their clients to attend a four party meeting in an attempt to get the parties to the table to work out their differences. It is now my practice to introduce all of my new family law clients to a Collaborative Law approach. See my article on Collaborative Law or visit the links page for more information. As I have had the opportunity to witness first hand the damage caused to families by protracted litigation I have decided that 2010 onwards my practice is going to focus on non-court solutions to client family-problems.

If you have a dispute that you can not resolve and it will require a number of witnesses and a one day hearing, you will have to wait approximately 6 months to one year to get your matter heard in the Family Division. On an emergency basis - and there are few things that qualify as an emergency - you might be able to get in within a week for 15 to 20 minutes.

If you want to have the court hear a preliminary matter, such as put support into place, you can get in on what we call an interim motion within two to four months.

SEPARATION AGREEMENT/DOMESTIC CONTRACT

Prior to divorce proceedings being initiated the parties can enter into a domestic contract or separation agreement. This is a document that outlines the rights of each party and is sometimes commonly referred to as a ‘legal separation’. You do not need this document to be separated at law. Any separation can be legal. The fact that you have chosen to live separate and apart is enough. Nevertheless, if the parties can reach agreement by virtue of a separation agreement then this can make everything that follows more simple, at least procedurely.

This agreement or contract can and often does form the basis for the Divorce. If the parties have a written contract they usually do not need to attend in court in order to get a judge to sign the final divorce decree or judgment. The judge will simply follow the Agreement and the matter can proceed by what lawyers refer to as a Divorce by Affidavit.

Failing agreement the parties will have to set their matter down for trial in order to resolve outstanding issues.

CHILD SUPPORT

Child support is the right of the child, not the parent. That is an important point to remember. Clients sometimes want to waive support for a number of reasons, most of them good. However, all the court is concerned with is that there be adequate provisions for support of the child in place. They will sometimes refuse to grant judgment until that is in place or will order it in spite of the parties requests.

The amount of support that is payable is found in the Federal Child Support Guidelines. Each province has one. They base it on the payor’s gross income, but there are a few things that are deductible, such as union dues, prior to calculation. It is also based on the number of children. In addition to support the payor parent is often required to provide money for what is known as “Special Expenses”. These can be things such as day care, dental work, hockey and other curricular activities that are associated with more expense than average.

CUSTODY & ACCESS

There are several types of custodial relationships. Sole Custody, Shared Custody and Joint Custody, to name a few.

Access can be as varied and flexible as the parties are willing to make it. It is also dependent upon the age of the children and even the wishes of the children, to a certain extent.

Most custody disputes are a "he said/she said" situation and the statements that sometimes appear as evidence in written affidavits can be so inflammatory that judges are unable to decide between the competing evidence. They might refuse to make a decision without the benefit of a parenting study and or psychological assessment. These are usually performed by psychologists and also vary widely, depending on the type of Order the Judge makes. Remember that these are expensive and paid for by the parties, not the court.

I am sure every good parent believes that the children and their well-being are one of the most important things to take into consideration, if not the most important thing, throughout the process. But it is unfortunately too easy for people to forget this in the heat of the moment or in their unresolved anger towards their ex-partner. Please try not to lose sight of this. There are a number of good programs out there for separated parents, such as "For the Sake of the Children". More information is available at my office or at most any law office that deals with family matters.

SPOUSAL SUPPORT

There is no automatic right to spousal support. It depends on a number of factors. There is a needs-based analysis that is done. Length of marriage; children or no children; whether one person substantially relied on the other for support throughout the marriage; the age of the parties upon separation, etc.

The duration of support is also dependent on the same above factors. Judges do not seem to like to make orders that are time-limited. Usually orders are open-ended and it is up to the payor spouse to make a motion to vary support. Any such motion needs to be based on a change in circumstances of either party.

There are spousal support guidelines in place, although they do not have the mandatory effect that the Child Support Guidelines do. Nevertheless lawyers and judges have begun to follow the criteria for calculating support. Both parties net (after tax) incomes are utilized and a formula calculates how much the payor spouse should pay. There are several formulas, one for with child, one for without. And there is wiggle room, unlike with child support.

DIVISION OF ASSETS

Married: If you are married the Marital Property Act governs your division of assets. Pretty much everything that you acquired throughout the marriage is marital property and each party is entitled to half the value after any debts are paid. The home you lived in is marital property, whether or not one spouse acquired the property before. Having said that, if one spouse owned the property free and clear before marriage, that spouse might be able to make an application for what is called an unequal division of marital property under the Act. The burden of proof is on the applicant.

In situations where there is a business involved it can become somewhat more complicated. First of all a business is not automatically marital property. However if it is determined that one spouse has legal title to the business, but the other has contributed to its success or growth, then a portion of it or half of it could be divisible. It all depends on each situation’s unique facts. Many times an accountant has to be hired to evaluate the business. The business might have to be sold or a loan might need to be taken out for one spouse to pay out the other’s interest.

COHABITATION/MARRIAGE AGREEMENT

I have left this for the last, but really, if you prepare one of these either before marriage or while living together, you really can avoid all of the mess and expense of the foregoing. People might squawk that it is a bad way to start off a new relationship, but when you are looking at divorce statistics in the 50% plus range, it seems crazy to not have such an arrangement in place.

The people we usually see prepare such agreements are on their second, third, or even fourth marriage or relationship and have been through the wringer of a messy divorce once or more. They know that they do not want to do that again.

My final thought is: WORK IT OUT! Do everything in your power to work it out. Everyone knows that relationships are tough and are work. Knowing what I know about the expense of the process, the fact that the results are not always fair and usually neither party is happy with the outcome, I recommend that you make a real honest effort to work things out. But I know that is not always possible and it is not always healthy.

Give my office a call if you would like to make an appointment to discuss your situation.