Everything that you probably didn’t want to know on legal issues and separation

Note on legal pages: The recommended resources, articles, etc. are offered in part to make you aware of the different situations that may be part of your on-going journey. The law does change through legislation and case precedent. Some recent articles talk about different case law and legislation that may be updated again and again. You must do your own update or engage a legal professional or access legal services at the Family Law Information Centre (FLIC) at the Court House. WE ARE NOT LAWYERS!

If it were my choice, the legal profession would be left out of the separating process until the final dotting of the agreement.

Parents would determine the parenting agreement with the support of any professionals required to ensure that each parent and extended family would remain an integral, parenting force in the child’s life.

Until our community adopts a process that is intended to maximize each parent’s role, most parents will require the use of family law lawyers at different junctures to settle disputes.

Unless low conflict approaches are employed from the beginning to arrive at a parenting plan, the separation years may seem to be never-ending.

The Resource Hub is focused throughout on two goals: a) a cooperative, shared parenting plan and b) a fair, equitable division of assets.

Accomplishing the above requires jumping through many hurdles at a time when anger, despair, and depression may be your companion many days. To make it through the shades of darkness requires a minimum, working knowledge of family law and the legal process.

Every section of the Resource Hub is designed to provide basic education on the different issues that must be resolved to effectively accomplish the goals set out in the Hub.

The separating process begins formally with the decision and an actual step to separate by one or both parties. Usually, there is an agreed to date of separation. This date may have significance in the division of assets and credit card debt, etc. You are now getting in to the nitty, gritty of detaching from the other parent.

Some former partners remain in the family home for economic/parenting reasons. However, the agreed to date of separation applies. Be aware that it could be challenged, if the parties engage in on-going intimate relations and /or cohabit in a way that creates some doubt over reconciliation.

Preparation before separating

Often, one or both parents/intimate partners have done homework on the separating process. In other words, one party gave the decision some thought, consulted a lawyer or discussed it with friends, who had personal experience.

In cases of abusive behaviors within the relationship, many women specifically have reached out to professional support, who often recommend a series of pre-steps prior to leaving the family home, often without a conversation with their intimate partner.

This kind of situation is less likely able to avoid the use of the legal system.

If possible (in most cases this is likely), the difficult conversations need to be held prior to separating. It is possible that one or both intimate partners may need support resources to set out the steps to a) actually initiate the separation in a ‘non-destructive’ manner; b) plan a family conversation to tell the children in a no-fault conversation (see section on Telling the children).

In the section on Domestic Violence, there are comments on the recommended steps found in many advice assessments to mothers. It is our position that there are better ways to ensure safety and create a calmer, separating environment.

The above steps are actually exceedingly difficult emotionally, and incredibly complex. At the very beginning, the Resource Hub is attempting to provide a GPS system to navigate unknown paths to a future that has two home parenting schedules.

If it is done thoughtfully and adheres to your parenting goals for your children and yourselves, you are off to a start to be proud of, even at a time, when the sense of failure may be overwhelming.

An informal parenting plan (initialed, if possible) can continue for some time, while everyone finds their equilibrium.

The focus must be on making the new routines manageable for shared parenting in the early days, weeks even months.

Sooner or later

The time does/will come, when one or both parents decide that the next step to a formal, parenting plan and financial division of assets makes sense. HOW THIS IS DONE IS OF CRITICAL IMPORTANCE!

Going from interim to permanent may make ‘sense’ to one party, but a giant leap for the other party. It sends a clear signal to everyone, who may have held hopes for a different outcome (other spouse, children and extended family or friends).

Now is the time HOPEFULLY for a conversation about how to accomplish the next step of a permanent, separation agreement. If the interim agreement has generally worked re: parenting, the pathway is clear with a few adjustments. In the resources, there are model, parenting plans.

Information and experts cited in the Resource Hub recommend that parents research the different, low conflict legal options; a) mediation and mediators; b) collaborative law and collaborative law lawyers; c) explore family lawyers with a reputation for an informal (collaborative-lite) approach; self-representation. (see resources for these options)

Seek out recommendations and do interviews together re: some possible candidates. A warning: once one party has formally engaged a lawyer in the traditional sense, it is likely that this is the direction going forward. As such, the approach on how to settle needs to be on the table before or ASAP following the formal separating.

Sometimes the next step is initiated because of a new relationship and one party desires to hasten or slow down the moving on. Whatever the trigger, one needs to recognize that the status quo of an interim agreement often has a limited shelf life.

Conversations need to be held regularly re: where each person is on the choices/options to avoid a costly approach.

You are served

You can be served anytime, but it is almost always a shock even when you have been warned that it is coming.

The initial legal document often triggers resentment from the receiving party and often sounds as if it had been written by an angry, aggressive, former intimate partner. But broken down, it has generally just two goals: a) a parenting plan; b) division and equalization of assets.

The legal language and the argument/justification for the parenting and equalization often pushes the outer limit and sometimes well beyond that limit. There is often accusatory language -accurate or not or incomplete or simply false.

Read/reread all documents carefully for what they request! The language can often lead you to take your eye off the ball. You are human after all.

The financial demands may be outrageous or seem so; but remember financials are often governed by rules set out by Family Law.

THERE IS ALMOST ALWAYS A REQUIREMENT TO RESPOND BY A TIMELY DATE. DON’T MISS THE DATE AND THIS MAY REQUIRE A TRUE PLAN OF ACTION!

Depression that leads to a failure to respond is potentially costly

As an example of being thrown off by such a document, I am reminded that I received an initial court document that stated that my children ‘feared’ me. This was a new, untrue accusation.

It knocked the heck out of me. Such statements, for most intimate partners, triggers a sense of betrayal and confirms the no going back. However, it is important that it doesn’t lead to erratic action through angry communication, public confrontations and interrogating the children.

YOUR NEXT DECISION IS NOW HERE! a) Find a lawyer to be your voice; or b) start learning everything legal in order to self- represent in writing your response; or c) prepare for a case conference.

There is a debate in some circles re: Is it an advantage to be the applicant or respondent? In theory probably no but …? The applicant sets the tone of the debate initially. The respondent must file a reply and may find it difficult to not only respond to the claims set out, but also to the ‘tone’ that attempts to support the claims.

There is some debate as to whether a respondent should refute directly and/or make counterclaims; or simply reply with a simple rejection i.e.” untrue”.

The tone within the document often provides insight into the reasonableness of the other parent and their lawyer.

Discipline, education, organization and taking care of self

Overload is often a major problem for a separating parent at this juncture.

Consider the different life changing forces in your life:

being a parent, negotiating with your children’s other parent…constantly (nothing is normal);
convinced that you are failing your children;
performance at work;
shortage of money;
building a mom’s house or a dad’s house;
rebuilding your own life; etc.
Oh yes, learning to be a lawyer to save on what you pay, or self-representing;
keeping all the documents straight and on time with different orders.
It goes on and on, with documents that are dissing you and everything good that you believed about your parenting, intimate relationship and family.

The good news is that most of us survive the chaos!

Legal representation

What are the major areas to understand, whether self- representing or with a lawyer? The following is a broad attempt to identify issues faced by separating parents with children. Further research is your responsibility. A range of websites and resources will be set out.

The Legal process is outlined in a chart in the resource section. The case conference and settlement conference paperwork are prepared by you (if you are self-representing) or your lawyer, working with you. The goal in Ontario and new Federal legislation Bill C-78 is that the parties will arrive at a signed settlement following mediation or the Case Conference or the Settlement Conference. Few cases go to trial, thank goodness. Unfortunately, there is often considerable pain that is expensive in reaching a settlement. The reality is that even today it is a rare case that goes to trial.
It is also true (to this writer) that fewer trials do not necessarily lead to equitable/fair, co-parenting plans. It can be about exhaustion and financial resources.
Financials: You are encouraged to do your homework on everything financial. These would include maintaining/obtaining past financial records, tax returns, matrimonial home paperwork, defined pension plans valuation, RRSP’s, possible spousal support, child support, other property, possessions, all types of debts, etc.

The more of this prep work that you do on your own the less time (fees) charged by your lawyer.

Spousal support is unlike child support. Child support has binding guidelines, that are applied when parenting time for the paying parent is less than 40%. Spousal support has always been uneven or even one might say all over the map. Spousal support guidelines are now generally applied by a judge, with some discretion, case law and a range of options based on their own judgment.

The duration of spousal support payments is based upon the length of marriage, etc. Many settlements provide a range of payments, often with an uncertain duration for longer term relationships.

If spousal support is a possibility, each person should read over the guidelines and prepare a case for what is reasonable/fair.

Read up on self-representation. Consider whether you fit the suitability/ temperament to do this work. Included are resources and sites for your consideration.
If parenting arrangements are a major source of conflict, consider alternative professional resources. They include the OCL (Office of the Children’s Lawyer); private assessors (do your homework on their belief structure); parenting co-ordinators (homework required also); special masters; FRO (Family Responsibility Office).
Parental Alienation Syndrome (PAS) is a tragic parenting situation faced by too many parents (usually faced by a dad and their child). See the resources for high-conflict-hostile aggressive parenting and PAS.
Specialists for children from high conflict family separations are often required. Again, one needs to do your homework on their credentials and their belief structure.
Mediator/Arbitration may be required to settle financial disputes.
High conflict cases often have a Domestic Violence allegation or child abuse claim. For a dad, this is often a difficult allegation to fully overcome. As such, it must be part of the legal equation in terms of creating a parenting plan. Locally the John Howard Society offers what is called PAR and the Caring Dads’ program, generally for men.

Many fathers are directed to the program by the court, and it may be a quicker route to being reconnected to their children – even if the claims are false. F&CS is almost always involved in such cases, based upon protocol, notification requirements. (see notes on F&CS)

The principal reason for F&CS is to protect children. Therefore, all allegations of any abuse impacting a child requires a safety assessment. Often a lawyer, who specializes in working cases with the F&CS should be hired.

Parallel Parenting Plans are an option in high conflict cases. The recommended resources include such plans.

Abductions. Hague Convention. The possibility of such situations must be considered; especially at a time when diversity in intimate relationships is part of our social landscape. Fathers and mothers often have strong family roots in different countries. (See Resource Hub)

For each of the above situations, recommended resources are included, and they may point you to additional resources that fit your family situation.

Points to consider

Other factors to reduce costs and communicate effectively with your lawyer – a few thoughts:

Read up on the lawyer’s responsibility to client. Read over individuals’ experiences in he resources.
A common complaint: “I can never get a hold of my lawyer. On occasion, his legal secretary returns my call.” Ask about the lawyer’s availability and how the two of you are going to effectively communicate.
How does the lawyer prepare for your Court date? Some lawyers simply meet you at the Court House. How do you provide him/her with your input? What should your expectation be when you go for a hearing?
Is your lawyer competent? Is he good in court? Are you certain of his/her integrity? Are they prepared? Don’t readily accept his fairy tale that you can’t lose. The lawyer is your expert, but they represent you and need to provide you with input, so that you can assess the next legal steps. You ask them the questions about alternatives i.e. the value of a sit down with the other party to resolve certain issues.
Don’t pester your attorney (on the clock) with questions suitable for a counsellor.
KEEP YOUR CHILDREN IN FOCUS. In my work with 4 lawyers, not one really talked about the impact on my children. The lawyers were into the’ blood sport-normal adversarial’ process. See resources-essays.
Be honest about situations that show up in court documents. A lawyer can only assess what they know.
Be organized with your information for your lawyer to save time (money) and to ensure he understands the information provided.
Expect professional work and be respectful.
Clarify the lawyer’s charges (retainer) for everything they do for you- down to the phone calls talking to the legal assistant.

Begin to separate your day to day financials IMMEDIATELY upon separating. Remember that separation date!

End joint credit cards, without cutting off key household services. Do it in a timely way.
Start up your own bank account. If possible, remove 50% of any savings. Tell your partner what you have done or are doing.
Protect certain assets from disappearing. Sometimes these assets simply disappear, especially in families that are drowning in debt.
Get all your financial records together. e.g. tax records; mortgages, how the down payment was made; car loans; define pension fund valuations; credit cards at separation date;
Change all relevant passwords, pin numbers, account numbers, etc.
Figure out a financial plan immediately. It may be depressing, but it is necessary. Because some assets are unavailable initially, short term planning may be an absolute necessity.
Grandarents may be an option. Many parents/grandparents do get stuck in the quagmire, so they need to understand the legal status and costs. It can be an added burden to you to have such debts to aging parents.
Many separating families have borrowed money from parents or grandparents for down payments, home renovations, etc. This may have been done on a formal or informal basis. This needs to be part of the equalization process;
Changing/updating your will may be required at some time in the process, including beneficiaries. This would also be a time for parents to review their wills,

Further Comments

Our legal comments are based on the experiences of hundreds of clients navigating the separating process. They are offered to make you aware of the legal issues that are a continuing part of the separating process.

It is important to do your own homework on the relevant issues that are never-ending, when you have children who have yet to complete post-secondary education (a degree or diploma).

Summary of the Kids ‘n’ Dad Approach:

Try to make choices that are intended to be positive for your changed family.
Do not be frustrated by the different parenting and financial conflicts. Forgive yourself for any flaws in your decision-making.
Remember the different resources – human or internet- to educate yourself.
The problem-solving model employed by the parents I.e. a peaceful and respectful approach to each other acts as a model to your children and a way forward over the long-term.
Do not sign anything legal that leaves vagueness and an opening for legal mischief.
Verbal agreements are not binding. Weigh the pros and cons on these kinds of agreement.
Leaving the matrimonial home as a way of taking care of the children in the short term may be damaging to the children. There are choices such as sharing/splitting the matrimonial home time with the children. The one risk is whether this presents the risk of a confrontation.
If some action feels risky- it probably is!
Do not buy into your lawyer’s argument that you have a winning position-clear cut. The truth is that he/she could represent the other spouse with probably the same words being employed.
Use our resources and others to determine the +’s and – ‘s of self-representation.
Each parent needs to start building a home for their children during their parenting time. A common error is to leave the children in the matrimonial home-absent on parent- for some time. They need EACH parent in their daily life.
The initial weeks and months of the separation for many families is often a time that runs up debts, on top of previous debts. Two homes are more expensive than one home. Depression is common and thus job loss, absenteeism, sprees for the children to ‘buy’ happiness or affection are common concerns.

Be sure to look at the different sections that are connected to the legal journey.

Common misunderstandings that can frustrate separating parents

The perception that child support is going to simply enhance your former partner’s lifestyle, not the children. Child support is a court order and is for the other partner to use as they deem proper.
You cannot change a Court order unilaterally because you have unusual debts in a month. On occasion, a former partner may (if payments made directly to them) voluntarily consent to a change.
Child Support is not tax deductible.
Child support does not end automatically at the end of secondary school. Steps must be taken.
Persistent arrears can lead to loss of license and even being jailed. Visit the Attorney-General’s Web Site re: Good Parents Pay.
Some paying parents threaten to quit their job or reduce hours. This is a dangerous strategy.
A new family with children does not reduce the obligation to your children from a previous marriage.
Consumer proposals do not free/reduce child support, arrears or obligations. Occasionally arrears may be made more manageable through a repayment plan negotiated with FRO often in a Court setting.
Arriving at a settlement for arrears or other matters is expensive, even in situations such as the end of a child’s schooling. You may need a lawyer, who specializes in FRO matters.

In the resources are Family Law articles. They cover some nuanced cases, that are on issues mentioned in this section. Unfortunately, Family Law is often made/created from unusual cases, that have extraordinarily, little relevance or reality to families at the lower end of the financial setting

For another voice on the impact of the legal system in separation, see My New Family Matters…Too!