Prepare For Your First Interview With Your Matrimonial Solicitor

Grounds for Divorce

To qualify for a Divorce, there are three grounds for divorce in Ontario. Adultery is the first basis for divorce. Mental and physical cruelty is the second basis for divorce. The third basis, is a one year separation. The first two grounds are rarely used today. If you proceed on the grounds of a one-year separation, you can issue the Petition for Divorce the day after separation, but it cannot be completed until one year has passed from the date of separation.

Financial Statement

For a solicitor to best advise you on your matrimonial situation, you should prepare a draft Financial Statement. (Click here to download a spreadsheet to help you.) This document along with your last three years of income tax returns and Notices of Assessment as well as an updated pay stub will permit your solicitor to best advise you on your first interview. The level of detailed information contained in the financial statement is significant and its accuracy is critical due to the impact that it will have on your final settlement. Your solicitor should offer his initial review of your financial statement and then advise if you need the services of an experienced financial advisor, who specialises in this field. You need to know if your financial plan will work for you after separation and divorce. No one wants to return to court to argue that you need an increase in support due to a miscalculation.

Family Law Act Claims

If you are not married, a Family Law Act claim can provide the same relief that you can obtain from a Divorce Action but without the actual divorce, as you never married.

Custody

Older children, starting in their early teens, can decide on their own where they want to live and how often they wish to see you. If the children do not want to see you, it is difficult, even in court, to force them to visit with you. Maintain a good relationship with your children at all costs. Usual access in Ontario for the non-custodial parent is every other weekend for the entire weekend, once during the week, birthdays, special events, religious holidays and summer vacation. The best solution, until the Legislation is changed shortly, would be joint custody where the children would have their principal residence in the home of the one parent and their secondary residence in the home of the other. Each party would have the day-to-day care and control of the children, while in residence with that party. Other types of custody are split and shared but this may be changed due to new Federal Legislation tabled in 2002.

Change of Name

Provision for a ban against the custodial party changing the child's name must be provided for.

Passport

Provision must be made for the child's passport to be in the child's legal name. You must provide sworn documentation from your spouse permitting you to travel with your child.

Change of Residence

Provision for a ban against the custodial party moving away from the non-custodial parent must be provided for.

Child Support

As of May 1, 1997, the federal government introduced legislation to change the Income Tax Act and the Divorce Act. Child support is no longer taxable in the hands of the recipient and no longer a tax deduction in the hands of the payor. To do a simple calculation of child support payable, refer to federal child support guideline tables (click here to download a copy of the original Guideline Table for Ontario) which indicates the payor's income, the number of children and the amount to be paid. For self-employed people, a calculation has to be done as to their income. The definition of income for child support purposes is different from the definition of income for income tax purposes. If your income surpasses the $150,000 level, a Judge has the option of either ordering the guidelines which provides for an amount of support at the level of $150,000 plus a percentage increase for any income over $150,000, or alternatively, the Judge does not have to follow the guidelines. The other points of interest are as follows:

• If you have the child in your care, forty percent of the time or more you can ask for a reduction in the guideline amount of child support or eliminated entirely.
• If you can claim undue hardship, which is a two-step test you can ask for a reduction in the Guideline amount of child support. The test is as follows:

1. UNDUE HARDSHIP
On either spouse's application, a court may award an amount of child support that is different from the amount otherwise determined, if the court finds that the spouse making an application on behalf of a child, would otherwise suffer undue hardship.

2. CIRCUMSTANCES THAT MAY CAUSE UNDUE HARDSHIP
Circumstances that may cause a spouse or child to suffer undue hardship are as follows:

• the spouse has responsibility for an unusually high level of debts reasonably incurred while supporting their spouse and their children prior to the separation or to earn a living;
• the spouse has unusually high expenses in order to exercise access to a child;
• the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
• the spouse has a legal duty to support a child, other than a child of the marriage, who is:
  • under the age of majority, or
  • is over the age of majority, but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
• the spouse has a legal duty to support any person who is unable to obtain the necessities of life due to an illness or disability.

3. STANDARDS OF LIVING MUST BE CONSIDERED
Despite a determination of undue hardship under subsection (1), an application under subsection (1) might be denied by the court. If the Court is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support have a higher standard of living than the household of the other spouse.

Other Issues Re: child Support

(a) Life Insurance

(b) Additional insurance coverage for health, medical and dental expenses

Add-on Expenses (additions to the child support guideline amount)

Pursuant to section 7 of the Federal Child Support Guidelines, both you and your husband have an obligation to contribute to the child's special and extraordinary needs.

The section refers to the following expenses:

a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

b) that portion of the medical and dental insurance premiums attributable to the child;

c) health-related expenses that exceed insurance reimbursement by at least $100 annually per illness, injury, or event, including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrist or any other person, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

d) extraordinary expenses for primary or secondary school education or for any educational programs that meet the child's particular needs;

e) expenses for post-secondary education;

f) extraordinary expenses for extra-curricular activities.

Please note that extraordinary extra-curricular activities has been interpreted to mean different things to different judges. The intent of the legislation is that this does not cover ordinary extracurricular activities such as swimming, baseball, soccer, etc. It is meant to include such things as camp, or if your child is a superstar in hockey or any sport, that he plays in 12 months of the year.

When does child support cease

Child support is normally payable for the length of time as follows:

a) the child ceases to be a child as defined in the Guidelines;

b) the child no longer resides with the custodial parent. "Resides" includes the child living away from home for school, summer employment or vacation;

c) the child turns 18, unless the child is unable to become self-supporting due to the illness, disability, education or other cause;

d) the child becomes self-supporting; e) the child obtains a post-secondary degree or diploma

f) the child turns 23 years of age;

g) the child marries;

h) the child dies; or

i) a party dies, provided that life insurance is in place at the time of death, the support ceases.

Spousal Support

The current state of the law with respect to spousal support is governed by the case of Moge v Moge, which states quite clearly that for a long-term traditional marriage (i.e. 10 years or more), the wife/husband will receive long-term indefinite support. The concept of time-limited support is no longer the Rule but the exception.

a) Spousal Support unlike child support is still a tax deduction to the payor and taxable income to the recipient.

b) Spousal Support can either be payable on a periodic monthly basis or on a lump sum basis.

c) Spousal Support payable on a periodic basis is tied to the income of the payor. The spousal support is subject to a material change in circumstances which means the amount can be changed depending on such things as a change in the payor's income, a change in the recipient's income, the winning of a lottery, etc.

d) Spousal support can be time limited if the parties agree.

e) Spousal support can be reviewable on a certain date if the parties agree. v f) Spousal support paid on a lump sum basis is a one time payment which is not taxable in the hands of the recipient and no tax credit to the payor. Because of the current state of the law, if you were to pay a lump sum payment of spousal support in exchange for a release of spousal support, there are no longer any guarantees that based on a material change in circumstance, this could not be set aside. Delay in bringing the application for a period of years is a strong factor against re-opening the lump sum payment in an attempt to obtain further spousal support.

Net Family Property

The Family Law Act envisions a formula for the division of all assets and debts at the end of the marriage. Both parties fill out a financial statement. A calculation is done which entails looking at their assets and debts on the date of separation. The debts are subtracted from the date of separation. Any property, assets or debts that were brought into the marriage, subtracting any excluded property (being gifts or inheritances received by that party from a third party after marriage and which is kept segregated and any money that person received for pain and suffering as a result of an accident) is subtracted. Once this calculation is done, then you take the greater figure of either the wife or the husband's, subtract it from the lesser figure and divide it by two, for a calculation known as the equalization of net family property.

An application for division of property based on subsection 5(1) or (2) shall not be brought after the earliest of,

a) two years after the date the marriage is terminated by divorce or judgment of nullity;

b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;

c) six months after the first spouse's death., R.S.O. 1990, c. F.3, s.7.

Matrimonial Home and Joint Tenancy

The Matrimonial Home is treated differently than if owned jointly. Firstly, if you should die, your half interest would automatically go to your spouse and vice versa. You may wish to sever the joint tenancy to tenants in common, so that at the very least, your half goes to your chosen heirs. You and your spouse both have possessory rights to the Matrimonial Home. Neither of you can forcibly remove the other from the Matrimonial Home. In order to obtain exclusive possession of the Matrimonial Home, one party must voluntarily leave the Matrimonial Home, or if a party goes to Court seeking an Order for exclusive possession of the home, based on legal arguments that are presented to the Court.

Will and Powers of Attorney

Immediately, upon separation you will have to have a new Will and Powers of Attorney drawn up and signed by you reflecting the changes in your life.

Conclusion

After obtaining the information requested and considering the issues raised in this article, you will be ready for your first interview with your matrimonial solicitor.

Howard S. Dyment, LL.B

January 3, 2003

You may also wish to refer to a recent article by AIM Funds Management Inc., "Family Law and Estate Planning".

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