DOMESTIC VIOLENCE TIPS FOR WOMEN

Statistically, women are most vulnerable to attack by their estranged partners around the time of separation.

It is not easy to tell when a woman is at risk of serious injury or death. Abusive men tend to exhibit the same characteristics, whether they are just "pestering" their ex-partners, or whether they intend them serious harm.

If your partner does some or all of the following things, you may want to review your situation with a lawyer, or a police officer, or both, to ensure your safety:

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• he controls and/or isolates you socially - by vetting your phone calls, or making it difficult or impossible for you to be alone, or to talk privately with, with family members or friends;

• he has assaulted you physically in the past - including "milder" forms of assault, such as grabbing your shoulders or wrists; preventing you from making a phone call, or from leaving a room;

• he has tried to commit suicide, or threatened suicide if you leave him;
  he controls all of the family finances, so that you have no money of your own;
  he accuses you constantly of being unfaithful;

• he shows up at your place of employment, and refuses to leave unless you talk to him about your relationship;

• he calls you frequently to talk about your relationship, even after you have asked him not to;

• he seems to know where you have been, even when you didn’t tell him where you were going;

• he wakes you up in the night to talk about your relationship, and refuses to allow you to sleep.

This is not an exhaustive list of behaviours which may indicate that your partner could harm you. It is only a list of some of the more common things that abusive men do around the time of separation. If your partner exhibits some or all of these behaviours, consider retaining a lawyer, even for a brief consultation, to talk about your options. Your lawyer will discuss with you the possibility of making a complaint to the police, or of asking for a peace bond or Family Court restraining order.

If you can’t afford a lawyer, you can consult with the Duty Counsel at Family Court in your jurisdiction for free, if you qualify financially. If you are unable to contact Duty Counsel or retain a lawyer, you can report your partner’s behaviour to the police, your family physician, your therapist (if you have one), your clergy person or spiritual advisor, and your friends and your family. The more people you tell, the greater your chances of having people watch out for you.
Here are some other tips to help keep you safe:

don’t see your partner alone. If he wants to meet you to discuss any aspect of your separation, meet with him with someone else present if at all possible (a mediator, or a trusted friend). If it isn’t possible to meet him with someone else, then always meet him in a public place, such as a Tim Horton’s. Never invite him into your home, and never meet him at his home;

report disturbing behaviour to the police. If he calls you repeatedly, or shows up at work, report the behaviour. The police may or may not lay a charge, but they will take you seriously, and they will probably go and talk to him at the very least, to encourage him to stop;

tell your employer. Many employers have a protocol for dealing with security issues. Insist that the protocol be put in place for you. This may include obtaining a parking space closer to the front door, in a well-lit area; restricting unknown people from entering your work space or calling you; or changing your work hours;

change your routine. Your ex-partner probably knows where you work, and what hours you work, as well as where and when you usually shop, visit friends, or pick up children from daycare. Vary these times if you can;

don’t use the children to carry messages. If they come to you with messages from their father, tell them that it is not appropriate for them to carry messages. Contact your ex-partner in a safe manner (such as e-mail, or through a trusted third party), and deal with him on the child-related issues only;

consider a neutral pickup and dropoff place to exchange the children;

tell your friends and family where you are going to be if you are out alone, and what time you expect to return;

keep your driveway and front door area well lit;

do not tell your partner things about your personal life. He will see this as an invitation to call or contact you more freely, or he may become incensed if you are seeing a new partner. Keep your personal life entirely private, and deal with him only on the business of raising your children.

Here is a list of resources in the Kingston area for you to contact:

Kingston Interval House (for shelter, counselling and confidential advice about abuse)
kih@kingston.net

Kingston Police Force
613-549-4660

Ontario Provincial Police Napanee
613-354-3369

Ontario Provincial Police 24-hour service
1-888-230-3505

SAME-SEX PARENTS AND BIRTH REGISTRATION

Until very recently, same-sex parents could not register the birth of any children they chose to have together showing both same-sex parents on the registration. The Registrar of Vital Statistics required that one parent on the registration be male, and one female. The non-biological same-sex parent was required to go through a formal adoption in order to be recognized as the child’s other parent.

A recent case from the Ontario Superior Court strikes down this requirement, at least for lesbians. In a decision released June 6, 2006, the Ontario Superior Court has held that the Vital Statistics Act offends the Charter because it requires that babies be registered with one mother and one father. The case allows that at least in the case of lesbian couples, both women may be registered as parents of any children they choose to conceive together at the time the baby is born, without having to suffer the expense (and indignity) of a formal adoption.

The case may also leave open the possibility that more than two parents may be registered on a child’s birth record. For example, a child may have two biological parents and a different birth mother. It is possible, using the reasoning of this decision, to have all three parents registered as a child’s "parents".

The reasoning in the case likely supports two gay men being able to register as a child’s parents, without the need for one of the men to adopt the child.
This is a well-reasoned, well-written case. The court has carefully analyzed the appropriate case law under the Vital Statistics Act, as well as the Charter. The issue is a large social one, however, and it is possible that it may be appealed. A decision from the Ontario Court of Appeal on this issue would be more determinative than a decision of the Superior Court.

You can find this case at the following address:

http://www.canlii.org/on/cas/onsc/2006/2006onsc13267.html

THE OFFICE OF THE CHILDREN'S LAWYER - WHAT DOES IT DO?

One of the things a judge is required by statute to investigate in a custody case is the wishes of the children “insofar as they can be reasonable ascertained”.

As a general rule, children do not testify in custody proceedings. There is no rule that says they can’t testify, but most judges have taken the view that allowing children to testify would leave them open to manipulation by their parents. Many judges also think that testifying in a courtroom, with both parents also present, would cause children unnecessary emotional trauma. As a result, the law in Ontario has evolved to find ways to put children’s wishes before the court without the need of the children having to come in and testify.

One of the ways that children’s wishes are put forward is through a lawyer appointed for the children of a family whose parents are disputing custody in court. The Ontario government runs a program through the Ministry of the Attorney General for this purpose (The Office of the Children’s Lawyer). The OCL may appoint a lawyer to represent children in appropriate cases, without cost to the family. A lawyer representing the children will meet with the children and with both parents, and will advise the parents and the judge what the children’s wishes are.

Sometimes, if the conflict is really serious, or if there are mental health issues in the family, the OCL will appoint a social worker to investigate both homes and provide a written report to the court, with a recommendation as to what should happen regarding custody of or access to the children.

Here is the website for the OCL, which provides more information on the program:

Office of the Children's Lawyer

Keep in mind that the OCL only becomes involved if the parents have gone to court to dispute custody. Without a court action, the OCL will not becomes involved.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)

WHAT IS AN ASSET REALLY WORTH?

When assets are valued for the purposes of equalizing them upon marriage breakdown, they are almost always assigned a “gross” value, and a “net” value. The gross value is usually the sale price of the asset at fair market value. This figure is often provided by a qualified appraiser. The net value is the value of the asset that the owner would actually get to keep. On the Net Family Property Statement, these two values are usually noted by entering the gross value of the asset, and then deducting the costs of disposition of the asset as a separate entry to arrive at the net value of the asset to the owner.

For example, if you sell a house, you don’t get to keep all of the money from the sale. The real estate agent will take a commission, and you will pay legal fees to the lawyer acting on the sale. Accordingly, the “value” of the house to you is the amount the buyer paid minus the real estate commissions and legal fees. In the family law context, a house is therefore entered into the Net Family Property Statement at its full value, and a separate entry is usually shown indicating what the anticipated commissions and legal fees will be. If the house is almost certainly going to be sold, the full real estate commissions and legal fees will usually be deducted from the value. If the house is not likely to be sold, commissions and legal fees will be deducted at a reduced rate to reflect the fact that the house may not be sold for a long time. Some deduction will almost always be made, however, because at some point, all houses are transferred, either by sale, or upon death of the owner, and costs of sale will be applied at that time.

Another common example is RRSP’s. The value of a registered retirement savings plan is the market value minus the income tax that will be deducted from it when it is collapsed. Pensions are treated in the same way (although pensions have their own set of valuation issues which you should discuss with me or any lawyer representing you).

Non-registered investments create different tax problems. It is hard to say what the costs of disposing of these assets are, because they are taxed as capital gain if they have gone up in value, or eligible for a tax write-off as a capital loss if they have gone down in value. You will probably need the assistance of a financial advisor or accountant to help arrive at the proper treatment of this kind of asset.

In short, many assets are subject to “costs of sale” or “disposition costs”, and these costs are usually deducted from the value of the asset for equalization purposes.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)

The Matrimonial Home in Ontario

FAQ REGARDING THE MATRIMONIAL HOME

My spouse and I are married, and are splitting up. The matrimonial home is registered in my name alone. Because the house is registered to me alone, can I make my spouse leave the home?

Under the Ontario Family Law Act, the matrimonial home has special status, and is treated differently than other assets owned by married couples.

In Ontario, assets are equalized when a marriage breaks down (see my FAQ "Property Issues and Filling out Financial Statements"). The ownership of the assets doesn’t change, and the right to possess the assets ordinarily goes to the spouse who owns them. For example, if you own a car, and your marriage breaks down, you still own the car after the breakdown of the marriage, and as long as your name is the only one on the permit, you are the only person allowed to possess the car.

The matrimonial home is treated as an exception to this rule under the FLA. No matter whose name is on the Transfer/Deed to the matrimonial home, BOTH PARTIES HAVE A RIGHT TO POSSESS THE HOME UPON MARRIAGE BREAKDOWN.

If the parties agree that one spouse should live in the home exclusively, they can sign a separation agreement granting that spouse exclusive possession. This means that the other spouse is no longer allowed to enter the home without the permission of the spouse in possession.

If the parties cannot agree which one should live in the home, an application can be made to Family Court for an order for exclusive possession pursuant to s. 24 of the Family Law Act. These orders are not easy to get. The court will have to be satisfied that it is in the children’s best interests that one of the parties be excluded, among other things. In general, there must be a case involving high conflict, domestic abuse, substance abuse, abuse of the children, or similar extreme facts before a judge will consider excluding one spouse from the matrimonial home.

My common law partner and I have been living together for 15 years. The house is in his name. I’m a half owner of it now, right?

WRONG. First of all, under the legislation, only married people can have a matrimonial home. If you never married, you have no "matrimonial home".

This means that upon breakdown of the common law relationship, you have no right to possess a home you don’t own. More importantly, it means that you have no automatic right to claim any share of the home as an owner, "half" or otherwise.

Unmarried common law couples can always ask the court for an order that they should own a share of the home on the basis that they contributed money or money’s worth to the home (resulting trust), or that they have done work in the family setting that "unjustly enriched" the spouse who owns the home, and that the non-titled spouse should be compensated by being given a share of the home. These kinds of claims are highly fact-driven, which makes them expensive to take to court. The outcome is also uncertain in most cases.

Unmarried couples can also execute an agreement(a cohabitation agreement) that says what they want to do about their family residence if their relationship breaks down (s. 53 of the FLA). They can provide for a division of the home’s value, and they can say who will live in it, and for how long.

The lack of a legislative right to possession of the family residence for unmarried cohabitatants is an issue that remains unaddressed in our current provincial legislation. With a growing proportion of couples choosing to live common law, the issue really needs to be given some thought by the provincial government.

My wife and I are married and are splitting up. I owned the matrimonial home on the date of marriage, and had about $50,000 equity in it. Can I subtract that amount from my Net Family Property so I don’t have to share the pre-marriage value of the home with my wife?

NO. If this were any other asset but the matrimonial home, the answer would be yes (see my Post "Property Issues and Filling Out Financial Statements").

The matrimonial home is defined as the home the spouses are living in on the date of separation. If you brought the home into the marriage, and you and your spouse are still living in it on the date of separation, it is a "matrimonial home" under the legislation, and you cannot exclude its pre-marriage value from equalization.

If, however, you brought the home into the marriage, sold it, and put all of the proceeds into a new home, which you are living in with your spouse on the date of separation, the new home will be the matrimonial home, and the old home, the one you brought into the marriage and sold, will have lost its status as a matrimonial home. You can, in this situation, deduct the pre-marriage value of the home you brought into the marriage.

My husband and I have a cottage and a home in the city. Which one is our matrimonial home?

Both homes may be matrimonial homes. It is possible to have more than one matrimonial home under the legislation.

If you and your spouse customarily lived in the city home in the winter, and the cottage in the summer during the marriage, then both homes may qualify as matrimonial homes. This will be so no matter which of the two homes you and your spouse are actually occupying on the date of separation.

But I inherited the cottage during our marriage! Can’t I exclude it from my Net Family Property?

Not if it is a matrimonial home. Unlike other assets, matrimonial homes cannot be deducted as pre-marriage assets, nor can they be excluded as gifts from third parties given during the marriage.

I want to make sure I don’t have to share the value of the matrimonial home with my spouse. How can I do that?

You and your spouse can sign a domestic agreement either before or during your marriage which allows you to keep the value of the home to yourself. Some couples decide to share part of the value with their spouses in their agreements, to compensate the spouse who is not on title for contributions to the home. But in your agreement with your spouse, you can make any decision you and your spouse want to make about the value of the matrimonial home. If the agreement is made before or during the marriage, any provision in a domestic agreement in which a spouse gives up the right to possess the home is unenforceable. Spouses can (and frequently do) give up the right to possess a matrimonial home in a separation agreement as part of a global settlement.

Can my spouse and I just do an agreement ourselves?

Please see my Post regarding Home-Made Separation Agreements. You can - but there are a number of formal requirements to make the agreement enforceable. It is almost never a good idea to create on your own a document that has the potential for expensive and far-reaching consequences. Each of you should retain a separate lawyer to review what you are trying to accomplish in the agreement, and to draft it for you.

Dealing with issues related to the matrimonial home or family residence is complicated. You should consult a lawyer before signing any documents, or making any commitments related to your home and your rights to it.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)

E-mail me!

PROCEDURAL OPTIONS FOR SETTLING

Separated couples have several options available to them for trying to work out a settlement of custody, support and property issues. Here is a summary of the main ones:

Mediation: This is an inexpensive option. In many jurisdictions in Ontario you can use a local government funded mediation facility. You pay the mediator based on your incomes, but it is still much cheaper than paying for lawyer time. Some couples retain and pay privately for a professional mediator. This is more expensive, but often highly effective if there are substantial property issues involved. In either case, you and your spouse meet with a mediator to discuss your options, and try to come to a settlement. Once you have a settlement, the mediator usually sends the lawyers a memorandum of understanding which sets out the principles for your agreement. You then review the memo with your respective lawyers, and a separation agreement is drawn up by one of the lawyers. In a case where there are some pension and property issues, you may want to consider having mediation with counsel present. This is something that can be arranged easily, and it is often very successful. Here is a link to Limestone Mediation in Kingston, Ontario, where I practice:

Limestone Mediation

Collaborative Family Law: This is similar to mediation, except that both counsel and the parties meet together without a mediator in a series of four-way meetings. The meetings have an agenda, and “homework” is assigned between meetings (such as gathering information, or having assets valued). This route is very successful in many cases, too. The advantages are that this process is comfortable and friendly. The one potential disadvantage is that if you do not settle in CFL, and have to go to court, neither of you can continue to retain the lawyer you used for the CFL process. This is to encourage you both to commit to the process, and to work toward a settlement. Here is a link to the Frontenac Law Association. You will find on it a further link to the Kingston Collaborative Family Law Association:

http://www.cfla.on.ca/

Negotiation through counsel: If your spouse retains reasonable counsel, it is possible that we can negotiate a separation agreement through correspondence. If you choose this route, you need to work on strict timelines, to avoid the matter dragging on too long without a resolution. This can be an expensive option if things don’t move along at a reasonable pace. If both parties have effective, settlement-minded counsel, it can be a quick and relatively inexpensive way to resolve the issues. If one party retains counsel who procrastinates, or who is argumentative or litigation minded, this option obviously becomes less likely to lead to settlement.

Family Court: You can bring an application in Family Court - in other words, you can sue your spouse. This is the most expensive, time-consuming, cumbersome and emotionally draining of all resolution options. It is not one you want to resort to unless there is no hope of negotiating a settlement. If, however, it becomes apparent that there is little hope of a reasonable negotiated settlement, it may be the best option for you to choose. If your spouse is really uncooperative you may waste a lot of money trying to negotiate a settlement, yet still have to proceed to court anyway. Suing may actually be more cost-effective in such a situation.

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Spousal Support Advisory Guidelines

In early 2005, the federal government published draft spousal support guidelines (“Spousal Support Advisory Guidelines”, or SSAG). The SSAG are not mandatory. They are meant simply as a guideline to lawyers and judges when attempting to resolve the issue of spousal support.

The SSAG assume that in a long marriage (or common law relationship) incomes will be approximately equalized, and that in a short marriage or relationship, the amount of support and the duration will be reduced. This is not always the result in court. The result may depend on other factors not addressed by the SSAG, such as the property equalization, or the health of each of the partners. Nonetheless, the SSAG have become a useful guide to possible outcomes in spousal support claims.

I admit that when they first came out, the traditional legal theorist in me was dismayed. The SSAG were unseemly - they looked like a way to inject new law into existing case law, without the benefit of parliamentary discussion, or judicial consideration.

I have had to retract my initial cynicism. The SSAG are very useful to family law practitioners and clients alike. For years, I could not tell a client with any certainty what she might expect to receive, or what he might expect to pay, in spousal support. Negotiations were often protracted, because the outcome wasn't certain. Anyone could be right, which meant both lawyers were worried about negligence claims, and both clients paid more than they should have to resolve the issue.

The SSAG have been with us since March, 2005. In that time, I have used them almost daily to give clients a rough projection of where the negotiations will begin if spousal support is an issue. Using the DivorceMate software, it takes me a few moments only to produce a professional and simple set of calculations.

The SSAG are not the final answer in many cases in which spousal support is an issue, but they are a place to start, whether the matter is in negotiation, or whether it is being litigated. Most judges I have encountered are happy to see the calculations as part of my argument, and in some reported decisions, judges in Ontario and other provinces have commented favourably on the helpful nature of the SSAG.

Certainty is a useful commodity in family law. The SSAG provide some predictability in a field where there was none, and for that reason, among many others, they are extremely useful.


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Are Home-Made Separation Agreements Binding?

HOW TO DO YOUR OWN BRAIN SURGERY - OTHERWISE ENTITLED “ARE HOME MADE SEPARATION AGREEMENTS BINDING?”

The short answer is “yes”, agreements drafted by the parties to a separation themselves can be binding. Section 55(1) of the Ontario Family Law Act sets out the minimum formal requirements for domestic agreements:

“a domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.”

The term “domestic agreement” is a comprehensive term, which includes separation agreements, cohabitation agreements, and marriage agreements. Married people, or cohabitees, are free to draft their own cohabitation or marriage agreements, setting out certain terms of their relationship. The agreements can cover spousal support, child support, property issues and “the right to direct the education and moral training of their children, but not the right to custody of or access to their children”, and “any other matter in the settlement of their affairs.” [emphasis supplied]. A separation (as opposed to a cohabitation or marriage agreement) agreement can, and almost always does, deal with custody of or access to children.

There are four other things that are unenforceable if included in a domestic agreement:

• married partners are not permitted to sign away their right to possession of the matrimonial home (s. 52(2)) in a cohabitation or marriage agreement, although they can do it in a separation agreement;

• a cohabitation or marriage agreement regarding the “education, moral training, custody of or access to” the children of the relationship may be disregarded if the agreement is not in the children’s best interests;

• an agreement which falls short of the provisions of the Child Support Guidelines regarding the provision of child support may be set aside if it is unreasonable, having regard to the CSG, as well as to any other provision relating to support of the children in the agreement;

• a provision requiring a partner to remain chaste is unenforceable, but provisions restricting support in the event of cohabitation with, or marriage to, a new partner, are still enforceable.

A domestic agreement, whether drafted by the parties themselves, or by a lawyer, can be set aside under certain circumstances (s. 56(4)):

• if a party failed to disclose significant assets or debts;

• if a party did not understand the nature of consequences of the domestic contract; or

• otherwise in accordance with the law of contract.

Naturally, it is the “otherwise in accordance with the law of contract” part of s. 56(4) which attracts the most litigation. Most folks know what their partners have in the way of assets and liabilities, and most people understand the terms of the agreement. A party wanting to set aside an agreement may try, therefore, to have the agreement aside for fraud, mistake, undue influence or unconscionability, which are the main deal-breakers in contract law.

The setting aside of agreements will be the subject of an upcoming post. Let’s just say for now that people who draft their own agreements run the following risks:

• the agreement may be unenforceable because it doesn’t meet the formal requirements (has not been signed and witnessed);

• the agreement may be set aside pursuant to the provisions of s. 56(4); or

• the agreement may be a very bad deal, but may be enforceable anyway, because it is not subject to being set aside pursuant to the provisions of s. 56(4) of the Family Law Act.

In short, separation agreements are complex legal documents. People do create them on their own, and sometimes fairly and successfully. However, as you can see, the pitfalls are huge, and can be costly. If you draft your own agreement and it isn’t enforceable (or it is enforceable, but you want out of it), you may be stuck with the consequences. If you retain a lawyer to draft the agreement, the lawyer’s job is to avoid the pitfalls for you. If s/he fails in that regard, you have recourse to the lawyer’s errors and omissions insurance plan to cover any negligent drafting.