Why should parents obtain legal advice prior to separation?

In my practice, I have been consistently asked by my clients: “how can the legal system allow my ex to unilaterally make the decision of removing our children and preventing me from seeing our children?” The answer is: it does not matter how; it matters that it can.

Obtaining legal advice prior to separation or as soon as practicable thereafter can help prevent this situation and/or equip parents in advance with the knowledge of the steps that should be taken to prevent disadvantages in custody and access cases. An example of difficult cases in my practice have included the following:

1. Parents separate. Parent 1 removes the child from the home and refuses to communicate with Parent 2 and/or to offer any type of access to Parent 2.

2. Mother alleges assault by Father. The police investigates the matter and has reasonable grounds to arrest the Father. Father is thus arrested and subsequently released on an undertaking not to communicate directly or indirectly with Mother and not to be within X metres from the Mother’s home or anywhere the Mother is known to be. This means that Father now has outstanding criminal charges which he has to defend in a process that can last approximately up to two years. This also means that Mother can now prevent Father from seeing the children and from returning to the matrimonial home.

3. Parents separate and reach an oral agreement regarding custody and access. During the access time of Parent 1, Parent 1 has the habit of threatening Parent 2 that the children will not be returned to Parent 2.

4. Parents separate and parents reach an oral agreement between themselves whereas children reside with Parent 1 and liberal access is provided to Parent 2. This situation continues without complications until Parent 1 falls sick. Parent 1, without legal counsel, agrees to Parent 2, with legal counsel, having custody to the children and both parents sign an agreement to this effect. Parents agree orally that children would be returned to Parent 1 upon recovery of Parent 1. However, when the time comes, Parent 2 refuses to return the children to Parent 1 and Parent 1 is now liable for paying child support in the interim.

The legal strategies in each of the above situations can differ and the results also differ based on the intricacies of each case. Parents must, however, understand that the actions taken immediately upon separation can have severe consequences in their legal case. For example, Parent 1 removes the children from the matrimonial home but Parent 2, for any reason, does not immediately seek legal advice to have the children returned. This can be highly detrimental to the custody case and Parent 2 can find herself in a situation of serious disadvantage and, quite likely, at the mercy of the other parent (particularly in the first six months of the family law case).

What action can the police take in a custody case?

Immediate action cannot be emphasized enough and parents should understand that the police has no involvement in separation and custody cases, unless there is a Court Order in place or there are clear grounds to believe that the child is harmed in the care of the other parent. Often times, pursuing emergency motions on the day when the child is taken can result in changing the entire course of the case. The police will only become involved if there is a clear Court Order.

Other times, for example in the situation of alleged assault, a different strategy can be implemented by legal counsel to ensure that the situation is normalized as soon as possible. The answer is rarely to involve the police but, inappropriately, there is a recent rise in cases involving situations where criminal charges are laid against one parent in order to obtain advantage in family court.

Parents should take immediate action

Separation from a life partner is already a highly emotional and difficult process. Parents should be well advised that immediate action, if possible even prior to notifying the other party of the separation, can prevent an even more traumatic experience of separation from the children, not solely from the life partner.

**The above is not legal advice. Please contact a lawyer if you seek legal advice.

Why Should You Seek Legal Advice Before Moving Out Of The Matrimonial Home?

In most cases, the matrimonial home is one of the most important assets in the marriage – both to the children with respect to familiarity and comfort, and to the adults with respect to claims for possession and equalization.

Equal possession

The Ontario Family Law Act grants equal possessory rights to both married spouses, irrespective of which spouse holds the title to the matrimonial home. A court order or agreement is necessary to ensure that one spouse has exclusive possession of the matrimonial home. Otherwise, if a spouse decides to leave the matrimonial home, exclusive possession is not definite for the other spouse. This fact is simply one of the many factors that a court would consider in granting exclusive possession, i.e. the fact that the spouse moved out and has other suitable and affordable accommodation. Other factors include: the effects of a move and the wishes of the children, existing equalization or support orders, the financial position of both spouses, written agreements, and history of family violence.

The mere preference of the spouses to remain in the matrimonial home is insufficient to justify an order for exclusive possession. Notwithstanding this, orders will be granted where the separating parties are warring and litigating. The court will grant an interim order for exclusive possession until the final resolution or trial, irrespective of which spouse commences the litigation.

Houseguests

Houseguests can become quite a nuisance for one spouse or the other. If there is a court order or agreement, one of the spouses is only allowed to enter the home subject to the conditions in the court order or agreement. Otherwise, s/he also has the right to possession, which includes inviting houseguests. If a houseguest’s presence is not desired, an application can be made to the court, upon which the court may make an order restraining the spouse of the applicant from molesting, annoying or harassing the applicant or children in the lawful custody of the applicant and may require the spouse of the applicant to enter into such recognizance as the court considers appropriate. A friend helping the husband move would not meet the legal threshold for “molesting, annoying or harassing.” As such, it is important to properly review court orders and/or agreements regarding the exclusive possession of the matrimonial home.

Support

Pending trial, support can be granted within months of starting an application. Choosing to leave the matrimonial home and not seeking support immediately is an argument that the other spouse could use in providing less support, both retroactive and present, both pending trial and at trial.

Equalization

Equalization of the matrimonial home is, typically, one of the most important financial aspects of a separation. This is because the matrimonial home has special status. Spouses cannot use a marriage agreement (commonly known as “pre-nup”) to contract out of the equal rights of both spouses to the value of the matrimonial home. It is important for each spouse to understand their own financial situation and how the matrimonial home impacts the final calculation of asset division.

The above considerations are not exhaustive and each case requires different attention to particular facts and how they impact the spouses’ decisions regarding the matrimonial home.

**The content on this website is not legal advice.

Why Should you have a Separation Agreement?

There are at least three reasons why you should have a properly drafted Separation Agreement:

1. Costs
2. Time
3. Finality

A family lawyer is expensive: clients would be lucky to find lawyers under $200/hour. If you meet the financial eligibility and criteria (which typically means that you have no income or that you receive social assistance), you may qualify for Legal Aid, in which case a legal aid lawyer will represent you, at no cost to you. This poses three problems:

1) Do you actually meet the criteria to qualify for Legal Aid?

2) When will you find a legal aid lawyer willing to take your case?

3) Having a legal aid lawyer does not guarantee that you will receive funding to pay the lawyer for each step of the case and you may even be refused legal aid if the case is set down for trial.

Legal Aid aside, the costs you will be facing should you hire a family lawyer for court proceedings may amount to paying a mortgage, on the lower side of the cost spectrum, and to the cost of refurnishing your house each month, on the higher side of the cost spectrum.

And then, there is the other option: not hiring a lawyer at all. This presents zero legal costs, especially if you and your spouse figure that you can solve your problems amicably. While the legal costs are low at the present time, this may actually cost you in several ways, adding to the time both parties spend on this, and defeating the main goal of a Separation Agreement, which is that of finality.

What are some of the typical downfalls of not having a properly drafted Separation Agreement?

• It could be that your spouse has a change of heart down the line. It is very likely that:
  • You did not comply with the legal requirements of a separation agreement
  • One of you did not understand the nature or consequences of what you were signing
  • You failed to provide proper financial disclosure
  • It also opens up the gates to arguments of undue influence, unconscionability, non est factum, duress, mistake, misrepresentation and repudiation, which are contract law grounds for setting aside a contract.
• You did not define all terms properly. For example, your spouse agreed to let you have the kids during March break. Did you define March break? Does it include weekends? When are the kids picked up and dropped off? This is one example far too common.
• A material change of circumstances may occur. For example, your spouse’s salary decreases. This is grounds for your spouse to make a motion to the court to change the Separation Agreement. Although not all material change of circumstances can be foreseen, a properly drafted Separation Agreement can address such changes.

This is not to say that a Separation Agreement cannot be costly. Sometimes, negotiation alone can result in high costs and a properly drafted Separation Agreement might also be subject to change. It is up to you to do a cost-benefit analysis: if you are uncertain, expending a limited retainer for a legal consultation gives you the opportunity to make an informed decision.

**The content on this website is not legal advice.

Why Should You Have a Power of Attorney for Property?

A Power of Attorney is utilized by a person (the “grantor”) to appoint (the “attorney”) to manage the grantor’s property. The attorney can do anything in respect of the property, with the following exceptions:

• Cannot make a will for the grantor
• Must make decisions with reasonable care
• Must not act in conflict with the grantor’s interest
• Must not make secret profits
• Must not make decisions conflicting with the will of the grantor, unless expressed in the Power of Attorney document

Evidently, the grantor can limit the scope of authority granted to the attorney by expressly providing this in the Power of Attorney document. The grantor can restrict the type of property or the timing of the attorney’s authority taking effect. For example, the grantor can specify that the Power of Attorney becomes effective only when the grantor becomes mentally incapable.

There are two situations in which to have a Power of Attorney:

1. The grantor is incapable to manage property (Power of Attorney for Property)
2. The grantor is unavailable to make decisions (e.g. out of the jurisdiction)

Where there is no Power of Attorney, it is much more difficult and expensive to have a substitute decision-maker. There is also unpredictability regarding the person who will ultimately make all property decisions. Furthermore, it is of utmost importance to have a properly drafted Power of Attorney: the grantor requires legal advice to ensure the document meets its intended purpose; the attorney requires legal advice to ensure he/she meets all legal obligations inclusive of proper care, accounting responsibilities, fiduciary duties, and limit of decision- making. Finally, the Substitute Decisions Act, 1992 governs substitute decision-making and, in the absence of a Power of Attorney, the default provisions may not reflect the desires of the grantor.

**The content on this website is not legal advice.

Why should you and your family members have a Will?

Roughly 65% of Canadians do not have a will. Often times, clients mistakenly assume that assets automatically transfer to their loved ones or, worse, they assume the right to assets where there is no will. Dying without a will, or intestate, simply means that the division of assets is left up to the Government. Consequently, potential beneficiaries have no say in the rules of division and, in fact, the deceased also has no say in the rules of division.

The expectations of the spouse, relatives, friends, and the deceased are irrelevant where there is no will, notwithstanding specific exceptions such as joint tenancy.

The government, through the Succession Law Reform Act, dictates that the following groups may take assets:

1. Spouse. The definition of spouse does not include common-law relationships and/or cohabitation. It mostly refers to those that are legally married.
2. Issue. This means all lineal descendants such as children, great children, etc.
3. Lineal ascendants and collaterals.

Although your loved ones are included in the rules of division, matters are further complicated when it comes to the share taken by each group, family law implications for spouses, and much more.

Consider this:

• If you are a son/daughter, not having a will most likely results in your parents not receiving any assets.
• If you have relatives that you do not wish to provide for, not having a will may achieve the opposite or make it more difficult and expensive for your intended beneficiaries to obtain assets.
• If you have a spouse to whom you are legally married, not having a will gives the spouse solely the choice of receiving the same assets she would if you were divorced. The law is intrinsically unanticipated by most Canadians when it comes to spouses.
• If you are in a relationship and are not legally married, not having a will may put your spouse in a vicarious position and complicate the process by which both your spouse and minor children receive assets.
• If you are a spouse, child, or relative and know that your loved one wants you to be a beneficiary, not having a will may most likely result in you not receiving anything or a much lesser share, as well as increase expenses.
• If you are a parent concerned with potential family law claims that a child’s spouse may have on what you leave behind, not having a will means that you do not have a say in the future of your assets
• If you have many assets, not knowing the distinction between a will and alternatives to a will may severely increase taxes.

Now, also consider the situation where you assume that a jointly-held account with your child will automatically belong to your child. This is not so simple. There are certain factors that the court will look at to determine whether a gratuitous transfer between a parent and an adult child should be considered as a resulting trust, meaning that the child must return the account to the estate. To reduce probate taxes and ensure that your child benefits as you like, a will is an essential step in fulfilling your intention.

Another wrong assumption among Canadians is that having a will won’t make a difference. Canadians with few family members believe that they do not require a will because everything is transferred to their spouse and children as per their desires. However, the rules of division are not desire-based and have other severe implications for you and your family.

So then….when should you consider having a will? If you have any assets, you should consider having a will.

**The content on this website is not legal advice.