Category: financial

Money matters and separation

On By BarryIn After Separation, Before Separation, During Separation, financial, legal

Note: The following was written a few years ago and as such resources may be difficult to find; however, the subject matter/issues remain. Use the different sections to find more recent articles. The legal section also include information re: financial obligations.

Reality Check!

Two homes cost more than one home! Family income is unlikely to change in the short or medium future. The initial weeks and months are likely even more expensive and may lead to rising debt levels for most separating families. A lack of civil discourse or cooperation may delay the urgent need to change financial habits.

Another common characteristic for many couple breakdowns is overspending in the months leading up to the actual separation. Money issues in the intact family are a leading cause for a relationship to end.

Listed below are a number of topics and resources intended to spotlight the different financial concerns  confronting almost every parent and their family.

Financial woes often contribute to marriage breakdown. Statistics suggest many couples begin family life in debt. Life with children is expensive and debt and managing debt is often an ongoing concern and a cause for conflict. It is unsurprising that in separating, conflict over money is a continuing saga.

    Before separation points to consider

    Separation with children and two homes triggers for many separated couples a journey  from manageable debt to ever-increasing and often unmanageable day to day debt. Most middle and upper, middle class, intact families spend to the limit of their joint income. Most during their child rearing years were content with savings only in some form of pension and hopefully an increasing asset in their home.

    These main assets are often tied up or unavailable for some time during the separating, legal process. Reading and understanding the legal impact on the financial side of separating is important for both parties.

    Some articles to consider before and during separation

    1. Top 6 marriage-killing Money Issues (Investopedia)
    2. 5 Ways Your Partner Can Ruin Your Credit (Forbes)
    3. Getting divorced? Five steps to get your finances back on track. (Globe and Mail)
    4. What financial experts wish you knew about divorce (Globe and Mail)

    Late in life separations

    Late in life separations are more common today. A well-planned for retirement can be turned upside down when one or both parties choose to end the marriage. Often children are no longer at home; but may or may not be launched into work life. Adult children may turn for financial support at a time when parents feel guilty about their late in life separation.

    Many 50+ age separating parents still have children in expensive post-secondary education and graduate programs. In the middle of a previously, certain trajectory of financial support an unexpected wrench is thrown into the mix. For many couples the assets are again a pension plan and home equity. The home based equity has often been eroded by borrowing from the asset to pay off borrowing in the intact family.

    In many cases only one parent has a full pension plan and the equity in the home may vary widely. Many parents find their long-term financial plans must begin anew. Separations rarely time the market or housing at peak valuation. Women, depending on their circumstances, may find themselves with fewer resources; more specifically some may need to acquire the skill set to manage their own financial affairs. In addition one of the partners may enter a separation unaware of their financial position.

    Resources on later in life separations

    1. Rising ‘grey divorce’ rates create financial havoc for seniors. (Globe and Mail)
    2. What to do when a midlife divorce derails retirement planning (Globe and Mail)
    3. From down payments to tuition, later-in-life divorces affecting plans to support adult children (Globe and Mail)
    4. I’ve seen people cleaned out: Divorce later in life (Financial Post)
    5. A divorce behind him and no company pension (National Post)
    6. Downsized: How a late-career job loss can derail retirement plans (Globe and Mail)

    The Legal Section provides supportive materials on legal obligations re: child support, spousal support, extraordinary expenses, equalization, etc. The following resources are offered as common issues/questions that may be relevant in many separations at some time. If you can anticipate these ‘common’ happenings then you may be able to work through them in a non-destructive way.

    Please do your own research.

    Many Family Law lawyers provide a one off-one hour session  to answer/clarify questions that you may have for a fee – without being their client. Cost likely $400-500. They are not acting as your lawyer at this time.

    The advice may provide clarity on the type of legal approach you wish to employ.

    General separation and finance articles

    There is an unending list of financial topics related to family breakdown. Many are specifically laid out in law re: financial responsibilities to children on a day-to-day basis through child support tables and extraordinary expenses. In addition, the law sets out the division of assets, settlement of debts and equalization. For many these require goodwill if the parents are going to navigate years of co-parenting.

    Articles are from government and newspaper websites. They may be dated and/or no longer available, but the topics remain relevant in most cases and allows you to do your own searches. They may help you determine the need for employing a lawyer or other support services.

    WARNING: The issues raised in the above articles often come from unusual situations specifically and impact the general population of separating families. Arriving at fair settlements should be your goal and not protracted legal settlements.

    Final Thoughts

     Economic survivability may be initially manageable but cannot survive the challenge/test of a job loss or unexpected health crisis.

    Budgeting for many two income couples has sometimes become a lost skill. It needs to be found-asap. Readings and tips may be found throughout the Resource Hub to help find low cost activities, etc.

    • Many couples need to separate/remove their names from accounts and credit cards ASAP.
    • Wills need to be updated, including possibly, the wills of grandparents!

    Money is a not so funny issue once a separation occurs. It can be a source of bitterness that impacts parenting relationships and used by one parent with the children in the blame game.

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

    On By BarryIn Before Separation, During Separation, financial, legal

    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.

    1. 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.
    2.  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.
    3. 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.

    1. 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:

    1. Read up on the lawyer’s responsibility to client. Read over individuals’ experiences in he resources.
    2. 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.
    3. 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?
    4. 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.
    5. Don’t pester your attorney (on the clock) with questions suitable for a counsellor.
    6. 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.
    7. Be honest about situations that show up in court documents. A lawyer can only assess what they know.
    8. Be organized with your information for your lawyer to save time (money) and to ensure he understands the information provided.
    9. Expect professional work and be respectful.
    10. 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!

    1. End joint credit cards, without cutting off key household services. Do it in a timely way.
    2. Start up your own bank account. If possible, remove 50% of any savings. Tell your partner what you have done or are doing.
    3. Protect certain assets from disappearing. Sometimes these assets simply disappear, especially in families that are drowning in debt.
    4. 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;
    5. Change all relevant passwords, pin numbers, account numbers, etc.
    6. 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.
    7. 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.
    8. 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;
    9. 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

    1. 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.
    2. 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.
    3. Child Support is not tax deductible.
    4. Child support does not end automatically at the end of secondary school. Steps must be taken.
    5. Persistent arrears can lead to loss of license and even being jailed. Visit the Attorney-General’s Web Site re: Good Parents Pay.
    6. Some paying parents threaten to quit their job or reduce hours. This is a dangerous strategy.
    7. A new family with children does not reduce the obligation to your children from a previous marriage.
    8. 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.
    9. 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!

    Legal and financial considerations in separation

    On By BarryIn Before Separation, During Separation, financial, legal, Parents

    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!

    At Kids ‘n’ Dad, we limit any specific comments on legal matters. Our legal observations are about the process and our personal experience and those of our clients.

    • We recommend the use of lawyers, where doing so makes sense. Lawyers in the community have helped us understand certain ‘unusual’ issues in law, in order to give direction to our clients.
    • It is important for every client going through the separating process to do their own homework on what makes sense for them and their family. Choices must be made at different junctures that are difficult. Some may work out as hoped, others less so.
    • It is important not to beat yourself up for choices made that go south; but try to learn lessons from those experiences. Do not react with behaviors that only aggravate an already difficult journey.

    Remember our rule: Choices made should be intended to bring your family closer together, even if it is in a changed family form.

    In the personal essay, Why It Matters, I discuss my journey some 25 years ago through the legal jungle that contributed to the premature loss of my children’s grandparents and damage to every important family relationship.

    A non-adversarial approach in our view has the best opportunity to set in place a more peaceful process that respects each other as effective, integral parenting partners. You are establishing a problem-solving strategy for the inevitable differences. It will help ensure that your children know that their parents are working together.

    If you read Why It Matters, you know that I made any number of critical errors i.e. a) no attempt at alternative, non-adversarial support; b) failing to find appropriate legal support; c) allowing others to take charge of outcomes; d) failed to take charge of my own destiny; e) assumed legal competency or emotional stability in the professionals- even when the signs were available that something was amiss.

    Things to do differently

    • Don’t leave the matrimonial home! The caveat to this is that volatility/conflict could lead to police and/or F&CS involvement and alter this good advice. If that is a concern, attempt to sign an interim agreement (signed) re: the parenting care time/involvement for the children prior to either parent leaving. Some parents, in order to be least disruptive to the children, alternate being in the matrimonial home, if they have nearby family or friend to stay with part-time.
    • Don’t sign anything, especially if it seems to leave a legal opening for mischief. In other words don’t assume that goodwill prevails beyond the moment. The line that came back to haunt me- that won’t happen- it almost always did happen, unfortunately.
    • Verbal promises are not binding agreements/commitments. Sometimes. if implemented on an interim basis, they may show intent and buy you a history that may work for you or against you i.e. parenting arrangements in the early post-separation weeks and even months are very important.
    • Take responsibility for the direction of your legal strategy- or even the direction or approach of your negotiations. Know the different resources available to support your family in navigating the way to a parenting agreement and division of assets.

    Rule re: your lawyer: Remember, when your lawyer is so empathetic and certain about the strength of your case, if the lawyer had been approached by the ‘other side’ first they would probably have been espousing similar words to their client. It is the nature of the adversarial approach. (See resources)

    If it feels risky-it probably is.

    Work at understanding the legal process. Many people are now self-representing. In fact, in many jurisdictions the figure ranges from 60-85%. Again, Family Law Information Centres (FLIC) are located in the courthouse to provide free counsel (30 minutes) to help facilitate document preparation or to answer specific questions. There is also some support at hearings through Duty counsel.

    Research the drawbacks on self-representation. I admire those who do so; but the legal process can be complicated, and non-professionals don’t normally understand the different legal tools. There is some research that suggest self-representation leads to negative outcomes. The Law Commission is trying to reduce self-representation. Justices are generally less patient with wannabee lawyers, who are less efficient and stumble their way through the process.

    You are at the mercy of the judge’s willingness to tolerate your inexperience. 

    Common financial areas of conflict between separating/separated parents

    Child support is laid out in guidelines and tables. Once a parenting agreement is signed the child support arrangement commences. It would seem to be straight forward…right?

      There is rarely enough money to pay for a mom’s house and a dad’s house. Almost all separating partners are ‘funny’ about money.

      Where/when does this show up? The initial period of separating is a complicated period re: child support. It is our suggestion that if a parent has the children less than 40% of overnights or there is a significant disparity in income, the parent who is the likely payer should pay the guideline child support prior to an agreement or set the amount in an account for possible future payments. Your ‘good intention’ is of some possible value in countering allegations that you are avoiding supporting your children.

      Some payers (usually dads) balk at having wages garnished; however, this is the decision of the recipient. The Family Responsibility Office (FRO) eliminates flexibility, but does reduce potential, monthly conflict.

      a) Extraordinary expenses for children e.g. grade 8 end of year school trips; daycare; braces; high level (?) activities; everything else that fall into a grey area- outside (?) of ‘normal’ care expenses. There is often a need to clarify what is an extraordinary expense. It is often a subject of a Court claim. Everything possible should be done to clarify such expenses from normal child support expenses.  I suggest that cooperating parents use common sense to determine the sharing of these expenses, usually done on a proportion to income basis.

      b) Layoffs or loss of job has consequences for meeting child support and extraordinary expenses i.e. income may drop to E.I. income. Parenting plans should lay out a process that recognizes change of income in a timely way. The Covid virus created a ‘mess’ because of reduced income, reduced hours or loss of employment by payers.

      C) Spousal support is determined through non-binding case law. Again, spousal support often has no apparent end date- to be determined. Very few requirements re: the receiving parent to move into the workplace or to actively (re)train. There are guidelines that are non-binding but are being generally employed by the court.

      • Ending child support for a child, who has graduated from secondary school,  but is unsure about going to post-education. This area is generally a mess, for often the paying parent has a less intimate relationship with the child. The recipient parent has a continuing need and has been used to receiving this payment and wants the payment to continue.
      • Many young graduates (age 17-18) now return for part-time (grow up) semester or two. Even if they don’t, the parent receiving payments has them often underfoot for some time. The receiving parent is balking/reluctant at voluntarily acknowledging the child’s completion of school and transition to independent living and responsibility for their own expenses. Cutting off payments immediately may have negative outcomes in your relationship with your child.
      • Remember that the definition of post-secondary education is very expansive and for many children flows straight out of secondary school graduation.
      • The paying parent and the recipient parent need to communicate early on a plan dealing with post-secondary education. This should be set out in the original separation agreement, if possible; but for certain, requires a conversation and resolution as the child enters their final year of high school.
      • The reality is that separated parents have more obligations than intact family parents to decide the level of support. In addition, the issue of continuing child support for a child away from their primary home is often a conflict i.e. 8 months at school/ 4 months at home. In some case precedents re: our clients, judges have applied a 1/3 responsibility for the overall cost to the child and to each parent.
      • Emotional Component: Making payments for child support with no certainty that the payment is going to provide for your child. Anger may show up when the ‘other’ parent informs you that you owe additional funds for unexpected child care expenses, etc… Disputes occur often over what is already included in normal child support vs. over and above costs.
      • If you are in a second relationship, every additional dollar paid out (especially in limited access situations) may be seen as a burden re: providing for your new family. In addition, the payments made to your child’s other home is not based on their family income/need. See attached article: My New Family Matters…Too!

      While in general a new spouse’s’ income is not included in any child support calculation, the reality is that the new home (partner) pays toward child expenses from their family income. Children from a new, subsequent family are treated as second class to a parent’s first family (children) in Family Law’s pecking order. 

      Further Comments

      • It is a rare separating family that has enough assets and yearly income to deal with the costs from a separation with children.
      • Accept that your lifestyle is going to take a significant dip. Children can’t be shielded from that reality; however, they can be shielded from any blame game targeting their other parent for the change in financial circumstances.
      • Spousal + child support + extraordinary expenses can add up to 50% or more of take home pay. In addition, there is a need to find a suitable place for the children, when they are residing with you on overnight stays. If a boy/girl that may mean an extra bedroom or a child sleeping in your room. It isn’t that this isn’t doable; however, there is a psychological aspect to a situation, when they are with you ‘feels’ inadequate or less than what they are used to or have in their other home.
      • Unfortunately, it may be a good ‘defensive’ step to ensure that the sleeping arrangements are ‘suitable’ by approaching a child specialist or even F&CS.
      • I made the mistake of discouraging sleepovers for my 12-year-old daughter at my ‘new place’ for the reasons given.  In addition, when my oldest daughter (age 16) moved to my residence (?) almost immediately, I failed to build a dad’s home in any meaningful way. Life seemed to be always in transition.
      • “I failed to understand that I was now a single parent, building a single parent home, just as my children’s other parent was doing.’
      • Consumer proposals are common enough for separating families with relatively low family incomes. Child support and any arrears are not reduced in a consumer proposal. These obligations are a priority that must be paid. Arrears may be subject to a court ordered repayment plan that is more ‘manageable’. Only a successful argument re: undue hardship may provide relief on Court ordered family support payments. Undue hardship is a difficult test and we suggest that you read more on that topic.
      • Allowing arrears to build up is a deadly outcome. Arrears cannot be willed away. They simply build and grow. You must take ‘timely’ steps to stop the bleeding in order to get a reduction in support payments for loss of job, layoff or pay reductions (reduced hours, etc.). Some of these relief actions may occur when tax returns (line 150) are disclosed in order to adjust the next year’s payment. However, there are life events where seeking immediate relief is required or arrears will begin to add up.
      • Unfortunately, there is no facilitator for negotiating a new agreement for legitimate change in financial circumstances. Because these payments are set out as Court orders, the court must agree to alter the financial agreement. One way to accomplish the change is for the recipient to agree to the changes on a voluntary/consent basis. The form is available on-line through the Attorney-General of Ontario web site. It is worth reviewing!
      • Mediation may be part of the agreed to process by the parties for settlement, if the parties are unable to reach an agreement.
      • Every separation agreement SHOULD have an accepted process to deal with finding solutions to the inevitable, life changes that are outside of going to court. It must be a process built expecting success not failure. It is my belief it should be mandatory.
      • Overwhelming weekly deficit and debts can lead to interrupted parenting and as such, even workplace problems from absence owing to depression. On too many occasions, I have had clients enter our office and when they leave, I know with high certainty that they are going to be overwhelmed financially and are ill-prepared for the financial challenge.
      • Updating your FRO payments because of conflict or substantial change through the Court with a lawyer may cost $3000 or more. It is a wicked system. The current system leads to serious, negative outcomes, because we can’t provide a process and solutions that are based on common sense. A concern is that law is built too often on unusual cases and these cases are not applicable for most disputes, where there is simply not enough money. (See resources – articles)
      • The use of the words voluntary, consensual, mediation and collaborative suggest that I am living in my own ‘dream’ world – agreements are often created from anger and discord. However, it is necessary to create a different, everyday environment for your children and yourself; or at least one of benign indifference!
      • The suggestions above are in everyone’s long term interest, including children, extended family, new partners, etc. Including the intention to follow a process set out in the original separation agreement is a head start to find non-conflict solutions.

      ‘Focus on fairness, respond with calm, never respond with anger!’ – A separated dad

      To that wise advice, forgive yourself for a lapse…and then rededicate yourself to the above goal.

      Do your homework on fairness! Don’t expect the law/guidelines to be thrown out because you have your unique, family history from yesteryear. What matters is finding a reasonable solution for where your family is now.

      A Final Personal note:

      Many years ago, half way through a 3 year journey to arrive at a final separation agreement, I said ‘enough is enough’. I was tired of being run over, so I decided to go to Small Claims Court over a couple of financial matters. I had hesitated for many months over taking such an action. I barely knew the process, except, that I was right about my cause and my expectation for success.

      The details really don’t matter. What did matter was how I felt going through a process with my children’s mother, my son and my new partner in the court. Here were two former intimate partners, middle-aged parents, fighting over money OR to be truthful driven by everything that had happened over the last few years. I felt pathetic!

      My ‘enough is enough’ cry would not be satisfied by a court victory or a court loss.

      I was simply left with sadness and embarrassment at my decision to proceed. A lesson that I have never forgotten! I forgave myself in time; I learned a forever lesson! Does it move us to a calmer place or a more chaotic place? Each parent has to make their own assessment.

      As stated earlier, cases are often based on unusual circumstances. As such, I still hold a belief that former, intimate partners and still parenting partners are better off working out common-sense solutions and compromises within the boundaries of family law.

      It is unclear that the logic of the outcomes in the cases below had long-term benefits for the children, parents and grandparents. The judicial path places control in the hands of a justice and case law and perhaps whoever has the best lawyer.

      I know that I would prefer to trust loving parents if at all possible!

                     Remember the two resources that are great introductions to this topic:

                    1) Why it matters?    2.) My Family Matters…Too!