Top Three Considerations in a High-Net-Worth Divorce

Money often complicates relationships, and the same can certainly be said of divorce.

Even the humblest set of shared property can generate hostility between separating spouses, so it can be a challenge for couples who have amassed a more complex and valuable collection of assets during their time together to keep relations cordial.

However, with the help of an experienced family lawyer who understands the unique nature of high-net-worth divorce, former spouses can set themselves up for a successful split.

In this blog, I will outline three important factors that I have found lawyers and their clients will benefit from considering during a high-net-worth divorce:

Financial experts

On the face of it, the division of a married couple’s property is a relatively straightforward affair: the province’s Family Law Act generally provides for an equal share for each spouse in the property accumulated during the marriage, subject to certain deductions and exceptions — with an equalization payment owing from one party to the other to make up any difference.

The bare bones of the formula are the same for high-net-worth couples, but getting the numbers to input into the equalization calculation can be more of a challenge when complex assets such as businesses, professional practices, pensions, investment property and stock options are involved.

The same difficulties often apply to the process of establishing an individual’s income for spousal or child support purposes when the person has multiple sources of income.

As a result, our firm will connect clients with a whole range of other financial experts as needed, including accountants and business or real estate valuators.

In addition, both parties may wish to call on the expertise of a tax professional to determine the most tax-efficient ways to divide property such as pensions or business interests.

On that note, if a couple can agree to jointly retain the services of any experts required in their matter, it can significantly reduce their costs. Not only does this avoid duplication of effort, it also increases the likelihood of settling without going to court.

Section 7 expenses

Section 7 expenses, which take their name from the portion of the Federal Child support Guidelines dealing with “special or extraordinary expenses,” are among the most contested matters for high-net-worth couples with children.

These expenses cover a broad spectrum of significant expenditures that are often not an issue for less wealthy couples, including extra-curricular activities, private school tuition, post-secondary educational costs and healthcare spending not covered by insurance plans.  

In court, judges are typically inclined to share these kinds of expenses between parents in proportion to their income, but former partners who are willing to explore alternative dispute resolution methods may be able to come up with a more convenient arrangement that suits both sides.

Mediation

I recommend that all of my clients consider mediation for the resolution of their family law disputes, but high-net-worth couples may have more to gain from the process than most.

For example, the confidentiality of the process is a big attraction for former partners with significant assets or private business interests that they do not want to see laid out for public viewing as they would be in court documents associated with their case. In mediation, neither the parties nor the lawyers involved are able to share information about what was discussed

In addition, the flexibility of mediation allows the parties to tailor the process to match their individual needs. Former spouses may opt to have their sessions overseen by a mediator with expertise in financial matters, and are free to bring in outside experts to deal with matters of finance, tax, investment or business interests.

When it comes to settlements, parties to mediation are also free to explore solutions that work for both of them, despite departing from the strict letter of the law. The tax treatment of transactions in particular represents a potential source of mutual benefit for parties who are willing to get creative in the structure of payments, such that the amount of capital gains or income tax payable is reduced.

If you are in the process of separating from your spouse and would like to discuss your options, schedule a consultation with me. I would be happy to help.

Five Common Mediation Myths Debunked

When I speak with prospective family law clients, most know that mediation involves a negotiation between two individuals with the assistance of a third party. But beyond that basic concept, their understanding is limited.

I have found there are several misconceptions about how the process works, who it is suitable for and what the desired outcome should be. So, let’s highlight the reality of family mediation by exploring five common myths.

Myth #1: Mediation is not appropriate for high-conflict divorces

Some clients — as well as lawyers — question whether mediation is appropriate in a high-conflict divorce. For example, maybe there is a history of controlling behaviour, a power imbalance or domestic violence. While it is true that some of these situations may require resolution through a court order, I would argue that mediation can be structured to provide a protected environment to resolve issues.

You can set up your mediation to ensure a safe process. If your mediation is in person, it can be structured so you arrive separately and are never in the same room together. Known as a shuttle mediation, you and your former spouse will be in separate rooms and the mediator then “shuttles” between locations to facilitate settlement discussions.

Parties communicate directly through the mediator and don’t need to be in each other’s presence. If your mediation is via teleconference, it can be facilitated so you and your former spouse will not appear on the same screen. 

Unlike going to court, mediation allows you to tailor the process to make it a safer environment and address any power imbalances.

Myth #2: I don’t need a lawyer if I opt for mediation

While you and your former spouse can attend mediation without lawyers, a mediator will often instruct the parties to obtain independent legal advice before entering into a separation agreement.

It is important to note that a mediator does not take the place of a lawyer. A mediator is a neutral third party who will help you and your former spouse communicate with each other to reach an agreement. They do not take sides, make decisions on your behalf or provide you with legal advice. 

Because the process is so flexible, you can decide your lawyer’s level of participation. For example, you may want your lawyer sitting at the table with you throughout the meditation, or you can meet with them to review the separation agreement before signing. 

Myth #3: All mediators are created equal

In Ontario, mediators who provide court-connected services must meet minimum qualifications, including training, certification/accreditation and work experience. That means a mediator could be a lawyer with a background in family law or a social worker/psychologist with mediation experience. 

In my previous blog, I noted that depending on the issues you are looking to resolve, one type of mediator may be more suitable for your case than another. For example, a lawyer-mediator can explain how the law applies to your situation and provide insight into what would happen if your matter goes to court. That said, mediators with a background in social work or psychology serve an essential role, especially if there are mental health or parenting issues to resolve. 

When choosing a mediator, it is crucial to consider a mediator’s experience with family law issues and their training related to your issues. Another benefit of involving an experienced family law lawyer in your matter is that they can help advise you about selecting an appropriate mediator.

Myth #4: Mediation is not suitable for complex financial issues

Sometimes there is a misconception that mediation is inappropriate for dividing complex assets. Again, because the process is so flexible and adaptable, you can tailor it to match the issues. Couples can choose a skilled mediator with experience dealing with complex financial issues and bring in outside experts such as tax professionals, financial advisors, business valuators, and others. In short, anything that can be accomplished in court can be part of your mediation process.

Another advantage of mediation is that it can be a confidential process, which is a big plus when dealing with a high-net-worth divorce. A closed mediation is private and confidential, barring a few exceptions. Lawyers and parties involved can’t share the discussions from the mediation session, which means there is a greater chance of privacy when you choose family mediation.

Myth #5: Litigation and mediation are mutually exclusive

Last year, amendments to the Divorce Act signaled a distinct shift away from litigation to make the family justice system more accessible and efficient. Family lawyers must encourage clients to solve issues through out-of-court methods unless it would be inappropriate.

That said, you are not locked into your initial choice to litigate or mediate. Even if you and your former spouse agree on one issue to negotiate and litigate the rest, you will reduce the time and expense of your trial. In addition, you can choose to start mediation at any point in the litigation process.

Mediation can be an excellent place to start, part of a broader approach, or it can be the entire process. You can determine the best path forward by speaking with an experienced family lawyer to discuss your options.

If you would like to schedule a consultation to explore if family mediation is right for you, send me a message. I would be happy to help you.

Five Reasons to Work With a Family Lawyer as Your Mediator

Couples who decide to work through the issues of their separation in mediation rather than in court have options for the professional they choose as their family mediator.

First things first: Mediation is a voluntary, out-of-court process where a separating couple works with a family mediator who helps them negotiate a mutually acceptable agreement.

In Ontario, we have a wealth of family mediators with different styles and backgrounds: some are lawyers, but there are also social workers, psychologists and other professionals. Depending on the issues you are looking to resolve, one type of mediator may be more suitable for your case than another.

For example, if the only bone of contention between you and your former spouse is around how your children will split their time between homes, it might make sense to select a mediator who is also a social worker with extensive experience in parenting issues.

However, if your divorce involves complex financial issues, you would be wise to choose someone who has an extensive background in family law.

Cases involving spouses who don’t agree on how to split their property and money are some of the most complex and time-consuming to resolve. Working with a mediator who is skilled in this area will help ensure that any agreement you reach in mediation is both fair and legally binding.

In this column, I will highlight five main reasons couples should consider working with an accredited family mediator who is also a lawyer.

1. Knowledge of Judicial Process

There are many benefits to working with a lawyer as your mediator, including their knowledge and expertise of the law and the court processes. As a result, they can provide you with helpful information about what would happen if your matter goes to court.

When you’re negotiating, it’s also important to know the best alternative to a negotiated settlement. A mediator who is a lawyer can provide that information, which will help you make informed decisions about your case.

2. Cost-Effectiveness

It’s important to select a mediator who is the best fit for your specific situation. As a general guideline, the mediator should have experience with family law issues and training related to the issues in dispute. If the mediator doesn’t have the required experience, the process could take longer to resolve and cost more.

3. Faster Resolution in Complex Cases

Once a couple decides to move forward separately, they usually want to resolve their outstanding issues as quickly and efficiently as possible. When the issues in contention are more complex — let’s say one spouse wants to keep the marital home but the other wants to sell it and split the proceeds — it’s imperative to understand both what the law dictates and how similar types of cases have played out before the courts. A family lawyer can be extremely helpful in this situation, providing you with timely access to the legal information you need to make educated choices.

4. Training and Expertise

Family law is extremely complex and constantly evolving. Only a mediator who is a family lawyer can explain how the law applies to your situation. A family mediator who isn’t up to date with current legislation or case law may inadvertently include terms in the agreement that are not legally binding.  

Something else to ask a prospective mediator is how much of their practice is dedicated to family mediation. Ideally, you want a mediator who is entirely focused on family matters.

5. Understanding of Power Imbalances

Mediators are required to screen the parties for power imbalances or domestic violence issues that might enable one spouse to coerce the other. As professionals who work exclusively with couples, family lawyers know how to recognize some of the more subtle behaviours that might signal an abusive situation.

While mediation may not be appropriate when family violence is a factor, I have successfully mediated many high-conflict cases as well as ones involving power imbalances between the parties. The process can work effectively and safely if the mediator designs a mediation that addresses the power dynamics. 

If you have questions about your situation and are looking for information either before or during the mediation process, please contact me. As a family lawyer who is also an accredited mediator, I will ensure you have a clear understanding of your rights, obligations and the legal ramifications you might face during the course of your matter.

Divorce Act changes, new family violence tort, highlight shifting legal landscape

Changes to the Divorce Act and a recent case where a woman was awarded $150,000 in damages for domestic violence signal that this type of abuse will be taken more seriously in the family law context.

Let’s begin with the legislative changes to the Divorce Act that were enacted in March of 2021. The Act now defines violence to include any behaviour that is:

  • violent
  • threatening
  • a pattern of coercive and controlling behaviour, or
  • conduct that causes a family member to fear for their own safety or the safety of another person.

Many types of abuse are criminal offences, but under the Divorce Act, the behaviour doesn’t have to be criminal to be considered family violence. For example, it is not a criminal offence if one party controls all the money in a relationship so that their partner is financially dependent on them, but it does meet the definition of family violence under the Divorce Act.

Courts consider impact of violence on parenting

The changes to the Act are also expected to impact decisions on parenting matters. The legislation stipulates that judges, in determining the best interests of a child, must take into account the impact of family violence when deciding on parenting arrangements. The law recognizes the impact domestic violence has on victims and on children.

The court must consider several factors when it comes to the impact of family violence, including:

  • the nature, seriousness and frequency of the family violence and when it occurred
  • whether there is a pattern of coercive and controlling behaviour toward a family member
  • whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence
  • the safety risk of the child or other family member
  • whether the family violence causes the child or other family members to fear for their own safety or that of another person
  • any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for the child.

It is hoped that these new provisions in the Divorce Act will bring positive changes for people who have experienced domestic violence, particularly when it comes to parenting issues. One of the biggest challenges for some parents following divorce is that they have co-parent with their abuser.

Landmark legal decision

Next, let’s turn to a 2022 decision that saw a judge award $150,000 in damages to a woman who endured a 16 “year pattern of coercion and control” during her marriage. The case is significant in that it established the tort of family violence and set out the legal requirements for liability.

This matter, Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII), states that to establish liability on a civil standard, the plaintiff must show the conduct within the family relationship is:

  1. violent or threatening
  2. constitutes a pattern of coercive and controlling behaviour, or
  3. causes the plaintiff to fear for their own safety or that of another person.

The key difference between this new tort of domestic violence and others that already exist is it would allow survivors to bring evidence of emotional abuse from the entire courtship of their relationship — as opposed to a single event only.

“The tort of family violence will give survivors an avenue to pursue both accountability and financial independence … through a single, family law proceeding. The promise of significant financial compensation could make it more realistic for some women to leave violent relationships,” writes Judge Renu J. Mandhane.

One in four women experience partner violence

To provide some context around the incidence of domestic violence, it’s important to point to the statistics.

A recent worldwide analysis shows that one in four women (27 per cent) experience intimate partner violence before the age of 50. This analysis, led by researchers from McGill University and the World Health Organization, looked at 366 studies involving more than two million women in 161 countries. While this research found Canada to be among the top 30 countries with the lowest rates of intimate partner violence, the problem still affects one in 25 women.

For anyone experiencing domestic violence, there are legal actions you can take to protect yourself, including:

  1. restraining orders: These prohibit someone from contacting you directly or indirectly.  Breaking this type of order would have criminal consequences and can be enforced by the police.
  2. other court orders: Orders that limit your contact with your spouse. These are not as strong as a restraining order but aim to limit contact. Some examples:
    1. restrict communication to text only – the goal is to prevent harassing telephone calls
    2. parenting time exchanges could be supervised – so that the victim does not need to see the abuser at exchanges.
  3. exclusive possession of the matrimonial home: This allows one person to stay in the home. The person who leaves does not lose their financial right to the home — only their right to possession until their family law matter is resolved.

If you or someone you know is experiencing intimate partner violence, click here for more information about what to consider when leaving the relationship. If you or someone you know is in immediate danger, call 9-1-1 or your local police.

Forcing the sale of the matrimonial home

Holding on to the matrimonial home after separation is harder than it looks.

Apart from the emotional ties one or both parties may have to the home where they made many of their family memories, it is also typically the most valuable asset they own, especially if they happen to live in a property market as hot as the Greater Toronto Area.

Even in an otherwise amicable separation, these factors provide some of the key ingredients for a potential dispute. In this post, I will explore some of the scenarios that can arise with the matrimonial home and how the courts might resolve disagreements.

Both spouses have the right to possession

Regardless of who is listed on title, Ontario’s Family Law Act (FLA) grants both spouses the right to possession of their matrimonial home until they reach an agreement or a court rules otherwise. It’s for this reason that neither one is allowed to change the locks and force the other out, even after separation.

However, carrying on separately from a former partner under the same roof can make for uncomfortable living, which is why divorcing spouses tend to turn their minds quickly to the question of whether the matrimonial home should be sold and who — if anyone — gets to stay.

Because neither party can sell or mortgage the matrimonial home without the consent of the other spouse, those who make clear their desire to stay in place should not be surprised if their former partner tries to leverage that knowledge to gain other concessions in broader divorce negotiations.

Presumption in favour of selling home

Some splitting couples are able to reach an agreement for one party to buy the other out of the matrimonial home. It may be possible to set a fair price based on your own research or with the help of valuations from a real estate agent, but many find it tricky to come to an agreement without listing the property on the open market.

The FLA does not provide for any right of first refusal to either spouse, but when the matrimonial home is jointly owned by both spouses, the province’s Partition Act allows a judge to force the sale of the property when the parties are unable to come to an agreement between themselves.

Although the judge does not have to grant every request made under the Act, the court starts with a presumption in favour of the sale of the matrimonial home, which means the resisting spouse will need to come up with a good reason to prevent the property from being listed. For example, the judge may halt a proposed sale if they are convinced that the party seeking it is acting in a malicious or oppressive way, or if the sale would be damaging to any children involved.

The situation is slightly different when only one spouse is listed on title because the Partition Act does not apply in these instances. Unless they have an equitable trust claim over the property, the non-titled spouse has no ability to force a sale, although they remain entitled to a share in the equity from the matrimonial home via the FLA’s equalization process.

High bar for exclusive possession

In exceptional cases, a court may order “exclusive possession” of the matrimonial home in favour of one spouse over the other, regardless of who holds title to the property.

Because of the seriousness of the remedy — forcing a spouse to leave the matrimonial home — the law sets a high bar for granting exclusive possession. When an application is successful, it is often in a situation involving domestic violence, where it is in the children’s best interests for one spouse to vacate the home.

Inconvenience or irritation at living with a former partner will not be enough for judges, who are generally reluctant to make an order for exclusive possession unless claims are strongly backed by evidence.

If you and your spouse are in the process of separating but don’t agree on how to handle the matrimonial home, consider working with a family mediator. Mediation is an out-of-court process that can help couples effectively resolve their disputed issues.

Parenting after separation: there’s a course for that (in B.C.)

Ontario could learn a thing or two from British Columbia’s new mandatory parenting classes for families going through separation.

Since the start of the year, anyone wanting to appear in B.C’s Provincial Court for matters touching on guardianship, parenting arrangements or child support must first attend a Parenting After Separation course.

The free online program helps parents develop strategies for communicating with each other and their children about their split, as well as introducing the parties to alternative methods of dispute resolution, including mediation and counselling.

Parenting courses rarely ordered in Ontario

The province has also designed a separate course aimed specifically at family members who identify as Indigenous, and says that the purpose of both versions is to help people make informed choices about family separation that focus on the best interests of the children.

Something similar would be very welcome in Ontario, where sadly, the only time parenting courses ever seem to get mentioned are in high-conflict cases. Even then, they tend to be used as just another stick for warring parents to beat one another with, as each party claims the other needs help to get their inadequate parenting skills up to scratch.

While parenting courses are occasionally ordered as a condition of access, it’s a rare occurrence that usually requires some significant concerns about a parent’s ability to care for their children. The Office of the Children’s Lawyer may also recommend parenting or co-parenting courses, but they only get involved in a small minority of family law cases.

Helping parents focus on children’s best interests

One of the nice things about the way B.C. has designed this mandatory approach is that it prevents parenting classes from being weaponized by either side in a separation, clearing the way for them to focus on what’s best for their children.

Separating Ontarian parents would benefit from greater exposure to more substantial information about the legal process before embarking on their journey through the court. Currently, all family law litigants in this province must attend what’s known as a Mandatory Information Session. The first half of these two-hour seminars — typically hosted by a family lawyer along with a mental health professional — covers basic information about family law, the court process and alternative methods of dispute resolution.

In the second hour, which is only for parents, the focus turns to family law as it relates to children, touching on coping strategies for younger kids dealing with divorce and community resources for those requiring more help.

B.C. expands program province-wide

These information sessions are a good start for parties to family law litigation, but they barely scratch the surface of what parents can expect after separation, which is why I think a parenting course modelled on B.C.’s could be useful here.

When first introduced, B.C.’s parenting program was required in only 21 of the province’s 89 court locations. During the pandemic, the provincial government injected a dose of flexibility into the process, allowing parties to attend via telephone, video or other electronic means. Those remote-learning options have been made permanent as part of the expansion to roll out the mandatory courses across the province.

In a statement, the provincial government said that the updates are just one phase of a multi-year project designed to “help families experiencing separation and divorce reduce conflict and work toward earlier, more collaborative resolutions, keeping children’s best interests front and centre.”

This is an aim I can get behind, and hopefully, Ontario will follow suit.

Until then, there is family mediation. I have had great success helping separated parents work through a discrete issue or develop a parenting plan that works for their family’s unique circumstances. If you would like to learn how family mediation can help level up your co-parenting game, give me a call.

Family dispute resolution: a healthier, more cost-effective divorce path

Earlier this year, the federal government’s amendments to the Divorce Act came into effect. These substantive changes — the first in more than 20 years — signal a distinct shift away from the adversarial nature of litigation in an effort to make the family justice system more accessible and efficient.

As of March 2021, family lawyers have an obligation to encourage clients to solve issues through a family dispute resolution process unless it would be inappropriate. As a family law litigator and mediator, I frequently discuss alternative dispute resolution (ADR) with my clients because I know how well it works.

There are different approaches spouses can take to make decisions about issues related to separation or divorce, including mediation, negotiation, arbitration, collaborative law and parenting coordination. But, it can be intimidating to consider these alternatives if you’re not familiar with the family dispute resolution process.

What is the family dispute resolution process?

The amended Divorce Act introduces a new concept — the family dispute resolution process — an umbrella term to describe out-of-court methods spouses can use to solve parenting, support or property issues. These different approaches (mediation, negotiation, collaborative law and arbitration) are also known as alternative dispute resolution (ADR). 

One of the most popular approaches is mediation where a neutral third party, a mediator, helps parties identify and discuss parenting, separation, or divorce issues and resolve their differences. The goal here is to communicate effectively to try and reach an agreement both sides can accept. A mediator doesn’t make decisions for you but instead helps identify issues and possible solutions. 

Why avoid the courtroom?

Mediation has generally been a less expensive and faster way to reach an agreement or resolve a family law dispute. In light of the court closures, backlogs and delays caused by COVID-19, the time and cost savings associated with mediation are undeniable.

I recently scheduled a case conference on a non-urgent matter, and the next court date available was in August 2022. Most cases don’t involve an urgent matter, so waiting for 10 months or longer to get a child or spousal support order is not sustainable for most clients. 

It’s not only the time but there’s also the cost. For example, bringing a motion can start at $5,000 and run upwards of $20,000 — and that’s typically one day in court where a judge will decide on one issue temporarily. That’s a lot of money to determine if and how much child support someone should be paying or to decide an interim parenting arrangement that is likely to change as the children get older.

Even if litigation is ongoing, couples always have the opportunity to deal with some issues outside of court for a fraction of the cost. Clients sometimes think that once they start litigation, everything else is off the table. But it’s not an all-or-nothing proposition. If you’re in litigation and mediate even one issue, that’s one less issue for a judge to decide. Incorporating mediation into your litigation will have enormous time and cost savings. 

Another important benefit of mediation is that it can preserve relationships, which is particularly important when there are children involved. Affidavit and court applications lend themselves to listing negative things about the other person and make it harder to have an ongoing co-parenting relationship. 

Courts are not designed to deal with issues in the customized way mediation does. Generally, a court is meant to give broad orders — for example, what days of the week a child will stay with each parent. With mediation, there is a chance to be more specific and fine-tune the parenting plan, including setting clear boundaries around communication or the day-to-day care of your children. The more detail in the agreement, the less likely there will be conflicts in the future. 

Is mediation for everyone?

By legislating lawyers to discuss the family dispute resolution process, the federal government is signalling that court should be a last resort and only used when ADR isn’t appropriate.

When I first meet with a client, I determine if there are any urgent issues, and then we explore if there’s an interest in mediation. As an experienced family mediator, I know first-hand how well the process works, but both parties must be willing to compromise.

Although it might not be appropriate in some family violence cases, mediation can work for high-conflict situations or relationships with a power imbalance. The process can work effectively and safely because of the ability to design a mediation that addresses the power dynamics. 

One way to do that is through shuttle mediation, where you and your former partner do not need to be in the same room or even on the same Zoom screen. Essentially the mediator shuttles back and forth between parties, so there’s no need to meet or discuss issues face-to-face. This method may even deescalate conflict because the louder person can’t dominate the conversation or bulldoze the quieter spouse. 

We’re about 7 months into the Divorce Act changes, so it will be interesting to see if more clients are open to mediating and settling their family law cases out of the courtroom. If you would like to schedule a consultation to discuss if an ADR approach suits your unique family circumstances, please contact me.

Parenting plans set families up for success after divorce

Sharing parenting time and decision-making responsibility for children can be incredibly challenging when a couple divorces. That’s why it’s so important to sit down with your lawyer or mediator and create a detailed parenting plan because it puts down on paper exactly what’s expected of each parent. It looks at the children’s current and future needs and provides ways to minimize potential conflict between parents.

The main points of a parenting plan involve the children’s health care, education, religion, and extracurricular activities. It can also cover daily routines, methods of discipline, childcare, potential changes to the schedule, and even travelling with the children outside the country.

The plan lays out the actual parenting schedule: where the children will reside, what their day-to-day schedule will be, and where they will be on holidays. A plan can be either fixed or flexible, depending on what will work best for the family. The advantage of a fixed schedule is that it minimizes conflict between the parents, but for those who have a good working relationship, a flexible schedule may be the better choice for the entire family.

A schedule includes a plan for long weekends and holidays, including the two weeks off at Christmas, the week of March Break, and summer vacation. In some calendar years, one parent can end up with most of the long weekends, so some parents like to specify which parent will get the children on each long weekend. There can be a different schedule for the summer months. From September to June the children are in school and have a stricter routine but in July and August, it may make sense to change the parenting schedule.

Reaching an impasse

I always tell clients that they are free to deviate from the parenting plan but if they reach an impasse and can’t agree on something, at least they have something to fall back on that’s as close to black and white as possible. If an issue crops up where one parent is looking to take the children for a long weekend, for example, and the other parent doesn’t agree, they can fall back on what’s written in the plan.

The overriding principle of a parenting plan is that it should be tailored to the best interests of the children. One standard rotation plan for parents with 50-50 arrangements is to have the children with one parent two days on, two days off, five days on, then five days off. Another that works better for some is one week on, one week off. But, for example, if a parent works the night shift, it doesn’t make sense for the children to be there overnight, so in that case, the parent must find other pockets of time to care for them.

The plan should also lay out how the parents will communicate with each other about various issues. Is it best to talk face-to-face, by video chat or by phone, use email, texts, or use a notebook that goes back and forth with the children? Is there a specific time to communicate with each other? How will they contact each other in case of an emergency?

Other issues to think about include dealing with pick-ups and drop-offs, how the children will be able to spend time with their friends, and how their clothing and other belongings will be arranged for and purchased. How will decisions about school be handled? Will both parents attend parent-teacher meetings? Who is the school’s emergency contact person?

Details matter

With such a wide variety of things to deal with, those who put a parenting plan in place on their own sometimes make the mistake of not making it detailed enough.

If issues aren’t clearly thought out in advance with the help of a lawyer or mediator, they can cause conflict later. Parents have the chance to tailor it to work for the entire family, which is not something you’re likely to get if you ask a judge to decide the issues for you. The court is not designed to provide the level of detail required in a comprehensive parenting plan.

Some clients insist that they’re getting along just fine with the other parent, who lets them see the children whenever they want. But I always stress that they should write out a plan anyway. They can put it in a drawer and not look at it if their relationship continues to be good, but if there’s a disagreement they can always revert to the plan.

It may not be possible to anticipate all the potential issues that may crop up, but a solid parenting plan can go a long way to minimize future problems and ensure that your children’s best interests are taken into account.

If you would like to schedule a consultation to discuss how a parenting plan can help your family move forward following separation or divorce, I would be happy to help you.

Separating From a Spouse? 5 Things You Need to Know About the Matrimonial Home

For most couples, the matrimonial home represents their largest asset and it is a place of emotional significance – filled with both positive and negative memories.

A matrimonial home is not simply the house in which a married couple lives. In Ontario, it is afforded special treatment under the Family Law Act.

Let’s have look at why the matrimonial home is such a hot topic during a separation or divorce:

#1 Spousal Consent is Always Required

Neither spouse is permitted to sell, mortgage or otherwise, encumber the matrimonial home without the other spouse’s knowledge and consent – be it during a marriage or post-separation, even if only one spouse’s name is on the title. 

If you and your spouse cannot agree on what to do with the matrimonial home, one party may apply to the court and request an order for partition and sale.  

If your name is not on the title and you fear that your spouse will try to sell it without your consent, you can ask a lawyer to designate the home as your matrimonial home and register that designation with the land registry office. This will prevent the home from being sold unless both spouses consent to the sale.

#2 The Court Can’t Force You to Sell the House to Your Spouse

In a situation where the matrimonial home is owned jointly, neither spouse has to sell their share to the other.  Remember that at some point the court may get involved but the judge can only order that the house be sold. 

Hence, do not waste money and time looking for a lawyer to “force” your spouse to sell you their share. The money is better spent on the down payment for a new home.

#3 You May Not Get Access to Funds Even After the Home Is Sold

Remember that the proceeds from the sale of the matrimonial home will be held in trust unless you and your spouse agree on how these funds will be divided or until there is a final separation agreement or court order in place.  

The reality is that you may not have access to the funds from your home until months after it sells – plan for this and speak with your lawyer before purchasing a new property.  

#4 Your Spouse Can’t Change the Locks

Under the Family Law Act, the matrimonial home is afforded special status and both spouses are equally entitled to stay in the home, regardless of who owns it.

There are, however, exceptions to this rule and it may be worth speaking to a family law lawyer to find out if you qualify for an order requiring the other spouse to vacate the matrimonial home.

#5 Leaving the home is OK, but…

You do not lose your right to the matrimonial home even if you move out before the divorce is finalized. However, leaving before a separation agreement is in place may negatively impact parenting arrangements.  If you have kids, we suggest that you consider staying in the home until a temporary parenting arrangement is in place – provided it is safe to do so. 

Also, remember that even if you leave, you may still have to contribute towards the carrying costs such as mortgage payments, property tax and insurance.

The Role of the Real Estate Agent

Selling a home doesn’t have to be complicated. Consider getting in touch with a real estate agent who you and your spouse both trust.

An experienced real estate agent can act as a neutral facilitator and assist the parties with the amicable sale of their property and avoid unnecessary disputes and associated legal fees. Feuding couples often agree to follow the recommendations of their real estate agents in order to avoid arguing over issues such as listing prices, staging costs and repairs as fighting over these issues will only delay the process and cost you more money.    

FAQ Calculating Support Using My Support Calculator

Until recently, I thought MySupportCalculator.ca (“MSC”) was a government initiative designed to increase access to justice. In fact, this tool was developed by Divorcemate Software Inc. (“DivorceMate”) and is Canada’s only accurate online child & spousal support calculator.  It allows individuals to tap into a simplified version of the software relied on by lawyers and judges across the country. 

I recently approached MSC about a sponsorship for my podcast, Dealing with Divorce.  In speaking with one of the project managers, Faith Feldman, I learned that they receive a ton of enquiries not only about their software but family law in general.  We collaborated to answer some of MSC’s most frequently asked questions.

1. What if I have questions about my calculation or my case but I can’t afford a lawyer? 

Although the software is very user friendly and utilizes the same calculation engine relied on by lawyers and judges, it is still recommended that everyone obtain legal advice with respect to their family law situation.  

There are a number of ways to access free and/or affordable legal advice.  

Many family lawyers provide unbundled legal services where they can advise you on particular parts of your case for a flat fee. Don’t be afraid to ask. You can find a list of family law professionals on MySupportCalculator.ca, many of whom offer these types of unbundled services.

You can also try:

  • Legal Aid Ontario which provides legal assistance for low-income people
  • ASC Toronto provides family lawyers who can provide summary legal advice at a reduced rate
  • Justicenet is a not-for-profit service helping people in need of legal expertise, whose income is too high to access Legal Aid and too low to afford standard legal fees

2. Does this calculator work for all the provinces?

In Canada, the Federal Child Support Guidelines govern child support for married couples.  For non-married couples, every province and territory has either adopted the Child Support Guidelines or has a counterpart, which essentially mirrors this legislation.  

MSC works for all provinces and territories except for Quebec, and ensures that the support calculated is based on the guidelines applicable to your particular province and situation.  

3. Is child support based on last year’s income?

A person’s annual income for child support purposes, is determined using the income set out in Line 150 of the payor’s T1 General or Notice of Assessment.  Depending on the situation, child support is based on the payor’s last year’s income or his/her current income. In some cases, child support is based on the payor’s income over the last three years.  

4. When completing a calculation it gives 3 scenarios for the amount; low, mid and high. How do I know where I fall on that spectrum?

Before you can determine where you fall on the spectrum, you first need to determine whether there is entitlement to spousal support under the law.  There is no point in calculating spousal support amounts if there is no legal requirement to pay it.  It is highly recommended that you obtain independent legal advice at this stage of the analysis. 

MSC provides low, mid and high points for spousal support based on the Spousal Support Advisory Guidelines (SSAGs).  The SSAGs are guidelines, not law; however, they generally form the basis for judges’ decisions.  

Choosing a location within the range requires a thoughtful analysis and should be discussed with a lawyer.  Below is a non-exhaustive list of factors to assist in determining where you might fall within the range: 

  • Strength of any compensatory claim
  • Recipient’s needs
  • Age, number, needs and standard of living of children
  • Needs and ability of payor to pay
  • Work incentives for payor
  • Property division and debt
  • Incentive for self-sufficiency

5. How do I know how long I have to pay spousal support for?

MSC and the SSAGs use different formulas to provide a range for the duration of support. 

Using the “Without child support formula”, duration ranges from 0.5 to 1 year of support for each year of marriage.  However, support will be considered indefinite, meaning that no duration is specified, if the marriage is 20 years or longer. 

When using the “With child support formula”, there are two tests for duration – the length-of-marriage test and the age-of-children test.  The SSAGs apply the longer duration of the two tests.  

6. Does the calculator consider benefits and credits in the calculation?

MSC automatically considers the benefits and credits applicable to the specific situation. For example, the Canada Child Benefit will automatically be considered if you select children in your calculation. Certain benefits and credits will only be applicable in more complex situations handled by MSC Advantage, the enhanced version of MSC. 

7. Why do I get a different number when I calculate spousal support alone versus when I calculate spousal and child support together?

The “Without child support formula” applies in cases where there are no dependent children and therefore no child support obligations.  Practically speaking, if a payor is obligated to pay child support, they will likely have a reduced ability to pay spousal support.  The formula for spousal support therefore differs depending on whether there are children.  The formula must take into account the payment of child support as it is prioritized over spousal support.  When using the same income, the “With child support formula” will typically generate lower ranges for spousal support than the “Without child support formula”.  

8. I see you use DivorceMate software and I was wondering if MSC Advantage shows the same detailed calculations that DivorceMate does?

Since MSC uses the DivorceMate calculation engine, when you input the exact same information into both programs, they will provide the exact same child support and spousal support results. However, there are detailed results provided with DivorceMate Software that are only available to legal professionals. 

9. At what age does child support stop? My child is over 18 and attending university/college full time. 

Contrary to popular belief, child support does not automatically end at the age of 18.  Although 18 is the legal age of majority in most provinces, support can continue well beyond that age if a child is still a dependent.

Both the Divorce Act (which applies to married parents) and the Family Law Act (which applies to unmarried parents in Ontario) require payors to pay support for children that are under the age of majority or over the age of majority and enrolled in a full-time program of education.  Other reasons such as illness or disability may also entitle a child to receive child support over and above their 18th birthday.