As you know, at MyOntarioDivorce.com, we aim to provide you with the tools to self-represent and manage your separation or divorce with minimal lawyer involvement.

Our clients contact us at various stages of the process, but some of the most common inquiries our lawyers receive relate to Separation Agreements. Read on to see our answers to some of your Frequently Asked Questions.

Do I need a Separation Agreement?

If you and your spouse have children, property, or a disparity in income, a Separation Agreement is crucial. It will set out how you and your spouse will deal with custody, division of property, support payments and any other issues, ideally before problems arise.

 What needs to go into my Separation Agreement?

The beauty of a Separation Agreement is that it can be whatever you want it to be. There is no official court-approved Separation Agreement template, which is a good thing because it allows you to draft an Agreement that works for your specific situation.  That being said, the key elements a strong Separation Agreement should address are custody, access, support (spousal/child), property division, and equalization payments, if applicable.

How do I draft a Separation Agreement? I can’t afford a lawyer.

We recommend that you make use of our Separation Agreement software at MyOntarioDivorce.com. It is a comprehensive program that will prompt you to answer all of the questions we’d ask you if you were in our office, paying us to draft your Separation Agreement, and- it’s FREE! It will take some time for you to complete it, but the result of your hard work is a cohesive Separation Agreement that you can print from your home computer. While the software may raise issues that you don’t need to address in your Separation Agreement  (for example: you may not have children), it may also remind you of issues you need to address.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

Now that you’ve read our Introduction To Property Law and learned about the concept of equalization, we are going to take a closer look at the factors that may affect the division of your assets. A court may award an amount that is more or less than half if it determines that equal sharing would be “unconscionable.” This determination will be made based on the individual facts of the case, but may include factors such as:

1. A spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
2. The fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
3. The part of a spouse’s net family property that consists of gifts made by the other spouse (since these gifts would ordinarily be
   part of the NFP)
4. A spouse’s intentional or reckless depletion of his or her NFP;
5. The fact that the amount a spouse would otherwise receive is disproportionately large in relation to a period of cohabitation (which may be before actual marriage) that is less than five years (so that if cohabitation lasts more than 5 years, it is not a
   factor);
6. A written agreement between the spouses that is not a domestic contract (because a valid domestic contract is itself conclusive as to those property rights it covers);
7. Any other circumstance relating to the acquisition, disposition, preservation, maintenance, or improvement of property.

Factors that do NOT typically affect equalization payments include marital misconduct (such as adultery or cruelty), and which spouse leaves the other, and why.

The purpose of the equalization payment is to recognize that child care, household management, and financial provisions are joint responsibilities of the spouses and that inherent in the marital relationship is equal contribution, financial or otherwise.

You may ask, “But my spouse did nothing to contribute financially or otherwise, why should he/she get my money?!” While it may not seem fair, the reality is that our courts are extremely reluctant to quantify and weigh the relative contributions of spouses, except in the most extraordinary of cases.

If you’re considering re-marrying (or living with someone) in the future, remember that many issues with equalization and division of property can be avoided by entering into an enforceable domestic contract, commonly known as a “pre-nup.”

For more information on domestic contracts, separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

Several years ago, Allan Markin, one of the owners of Calgary Flames, launched a $2-million lawsuit against his 22 year-old step-son, Zak Pashak, during the highly volatile breakdown of his marriage to Pashak’s mother. At the centre of the claim? Custody of Molly, the family’s Dalmatian. Markin demanded that Pashak either surrender Molly and pay $1 million in damages, or, keep her and pay $2 million.

As silly as the above scenario may seem, the matter of who will get custody of the family pet is often a huge issue for separating or divorcing spouses. For animal lovers, losing a family pet is as traumatic as losing a member of the family. Traditionally, courts have looked at pets as possessions, much like a TV or a car, and not like a living being. With this approach, sharing custody of the family dog between separated spouses would be about as likely as the spouses continuing to share a toaster on a week-on, week-off basis.

In deciding how to make custody arrangements for children, a court will determine what arrangement is in the child’s best interests. With pets, it has traditionally been the opposite- who gets the pet is decided based on which spouse will benefit most. Recently, some courts have begun to recognize the important role that pets play in the lives of their owners, and have started to treat pets more like children than chattels. This is primarily the case with dogs. Some courts have even made a determination of the best interest of the pet in deciding who should get custody, and have awarded shared custody, visitation and even alimony payments to the custodian. Another emerging trend is for pets to stay with the children as a calming influence to help in the separation transition.

Ultimately Markin won custody of Molly the Dalmatian and Pashak’s mother received a divorce judgment.  For the rest of us who don’t have the time or money to launch a lawsuit over a pet, the best course of action is to attempt to come to an agreement with your spouse and put it in your separation agreement.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

Separation agreements are formal agreements entered into by both spouses that provide for the arrangements between parties upon separation or divorce. Such agreements include provisions regarding the division of property and set out the financial and support responsibilities of each spouse on an ongoing basis. Most courts prefer that spouses enter into a separation agreement as opposed to engaging in the family court system because the spouses are more capable of entering into an arrangement that will fulfill their needs than a Judge would be at ascertaining these needs and making an order that would meet them. Additionally, many couples enter into separation agreements because court proceedings can be expensive and time-consuming. Separation agreements also provide parties’ with a larger role in shaping their post-separation family. Separation agreements can resolve issues in a matter on a final or interim basis, depending on the needs and desires of the parties.

Each spouse is represented by separate legal counsel, who usually works together to draft and revise the separation agreement following discussions between the parties and/or their lawyers. If one spouse is not represented by legal counsel, that spouse must take the draft of the separation agreement to be reviewed by an independent lawyer prior to signing the agreement. One of the safeguards of a separation agreement is the Certificate of Independent Legal Advice, wherein each party’s lawyer signs off to indicate that they have provided their client with their objective legal opinion regarding the contents of the separation agreement. This is why each party requires a lawyer in order to execute a separation agreement.

If the parties are having difficulty coming to a consensus regarding any of the issues in the agreement, they may want to seek the assistance of a mediator, who can assist them in coming to a compromise. This can be done by the parties on their own, or with their counsel.

Once the spouses have agreed upon the final draft of the separation agreement, they must both sign the agreement in the presence of a witness. The witness must then sign the agreement to certify that the spouses both signed the agreement.

During the process of drafting a separation agreement, the spouses must disclose all financial information, including assets, debts, liabilities, and income, to the other spouse. Failure to do so can result in a court later setting aside the separation agreement. Additionally, this financial disclosure is required by the lawyers in order to formulate their objective, legal opinion in order to provide independent legal advice. It is impossible for a lawyer to comment on the fairness or desirability of an agreement without examining the other party’s financial circumstances.

One of the benefits of a separation agreement is that it can be crafted to meet each family’s unique needs. However, some typical terms included in separation agreements are as follows:

• Date of separation
• Child custody information, including:
  • Which spouse will have custody (meaning decision-making authority regarding the children)
  • Where the children will live, or their “residence”
  • Access arrangements, including not only the general access schedule but also provisions regarding holiday and vacation times
• Child support information, including:
  • The amount of child support payable
  • Duration of child support payments
• Timelines for the exchange of financial disclosure for future years
• Spousal support information, including:
  • Which spouse will pay support
  • Duration of support
  • Amount of spousal support payments
  • Whether support is waived
• Property division agreement, including:
  • Who gets which assets
  • Sale of property
• Who makes an equalization payment to whom and the quantum of the said payment
• Provisions regarding the matrimonial home (disposition and possession of same)
• Information regarding outstanding debts:
  • List of current outstanding debts, including credit cards, loans, and mortgages
  • Responsibility for each debt (i.e. which spouse will assume which debts)
  • Information regarding debts incurred after separation but prior to final divorce decree
• Information about pensions and other retirement accounts

Failure to include any of the above information can result in one of the spouses later filing suit in court to resolve an issue related to the separation, as it was not covered in the agreement.

For more information on separation agreements and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Upon separation or divorce, a couple must appropriately divide the property acquired during marriage or cohabitation. While the rules vary slightly depending on whether the couple was married or a common law couple, generally, property is divided fairly between the two parties.

Typically, property is divided equally, with each spouse taking 50 percent of all property. This applies regardless of whose name is on the title of the assets. However, you are permitted to keep the following:

• Gifts you received during the marriage from someone other than your spouse
• Any property inherited during the marriage that was not given to both spouses
• Money received as the result of a personal injury accident
• Money received from an insurance company due to wrongful death

While most property that you owned prior to the marriage is yours to keep upon divorce, any increase in the value of this property during your marriage must be shared equally. Additionally, any property purchased during the marriage is split evenly, regardless of which spouse paid for it.

One exception to the rule that you are permitted to keep any property separately owned prior to the marriage is the marital home. The marital home is where the husband and wife resided during the marriage. This can be multiple properties, depending on whether the husband and wife owned multiple homes, such as beach properties and other vacation homes. The marital home is split evenly, regardless of whether one spouse owned the property prior to the marriage, inherited it during the marriage, or received it as a gift.

To determine how much property each spouse should receive, the parties must first calculate the “net family property.” This is the amount of property each spouse currently has. There is a separate net family property for each spouse and, at the end of the property division, each spouse is entitled to an equal net family property. The following details how each net family property is calculated.

You must first calculate the value of all assets the date of separation. Create a list of all property that is in your individual name. Such property includes furniture, jewelry, money in bank accounts, retirement accounts, and personal items. Any property owned jointly should be valued and each spouse should include half the value of the property on his or her list.

Degrees and licenses are not considered assets that need to be included in the net family property calculation. However, if a spouse supported the other spouse while obtaining a degree or license, this may affect the amount of spousal support and/or child support awarded.

Second, deduct the value of all liabilities at the date of separation. This includes any credit card debt, outstanding mortgages, and car loans. These liabilities should be subtracted from the amount of assets in the first part above.

Third, deduct the value of all assets exempt from the equal division rule. Any property that you (a) owned separately prior to marriage, (b) received as an individual gift or inheritance, or (c) received from an insurance company due to a death or from another individual subsequent to a personal injury claim, is exempt from being included in the marital property. This property is valued as of the date of your marriage, if received prior to the marriage, or at the date of receipt, if it was received during the marriage.

Four, add the value of any liabilities existing on the date of marriage. This means any liabilities that you owed separately prior to the marriage and includes credit card debt, mortgages, and car loans.

Once you have determined each spouse’s net family property, you must determine how much one spouse owes the other spouse. To do this, you should:

• Subtract the smaller amount from the larger amount
• Divide by two

The amount that you calculate is known as the “equalization payment,” or the amount that the spouse with the larger share must pay the spouse with the smaller share. This amount may be paid in cash, or by giving the spouse with the smaller share property in the amount of the equalization payment. The manner in which the equalization payment is made is often specified in separation agreements, or by the court presiding over the matter.

The amount of an equalization payment may be reduced if the court finds that such a payment would be unconscionable. While this is rarely done, a court may reduce the equalization payment if the couple was married for a short period of time, or if one spouse purposefully depleted family assets.

Common law couples are not covered by Family Law Act and, accordingly, the above rules only apply to formally married couples. In instances where a couple has cohabited for more than three years and decides to separate, either party may make a “constructive trust” argument for the equal division of property. Such an argument would be that each person contributed substantively to the value of the property, regardless of whether he or she paid for the property or had the property titled in his or her name. If this argument is accepted by the court, one of the parties may be entitled to an equalization payment from the other party. However, this is a more difficult standard than for married couples because the spouse claiming property ownership has the burden of demonstrating that he or she did contribute to the value of the property.

For more information on domestic and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

The matrimonial home is anywhere the husband and wife resides during a marriage, regardless of whether it is a single-family home owned by the couple, a rented apartment, or a mobile home. Under the Family Law Act, the matrimonial home is always dealt with separately from other marital property within separation agreements and divorce decrees. Regardless of who owned the home at the beginning of the marriage, the matrimonial home is always divided equally, meaning that, upon the sale of the home, both spouses receive an equal share of the proceeds.

During a property division, immediately sell the home and divide the sale proceeds equally between the spouses. Depending on the needs and desires of the respective spouses, as well as the circumstances surrounding the divorce, the matrimonial home can be dealt with in any one of the following manners:

• One spouse pays the other spouse half of the home’s fair market value at the time of divorce and gains complete ownership of the home
• Both parties continue to own the home jointly until a set event occurs

When undergoing a divorce, both spouses have an equal right to possess the marital home. Often times, one spouse is permitted to continue living in the home without purchasing the other spouse’s share of the home. This is often the case in instances where one parent is granted child custody and is permitted to remain in the home, or if there has been an abusive relationship, restraining orders are involved, and the victim wishes to remain in the matrimonial home.

If it is decided that one spouse should be permitted to remain in the home, there are essentially two options: the couple can continue owning the property jointly, or the spouse retaining possession can buy out the property interest of the other spouse. If the parties decide to maintain joint ownership of the home, they can do so until a set event occurs. Such events may include the remarriage of the custodial parent or the children reaching a certain age. During the time that the custodial parent retains possession of the home, he or she is solely responsible for paying the mortgage and taxes, and is permitted to take tax deductions for any payments of principle made for the home. Any major repairs made to the home are divided between the parties and, upon the final sale of the home, the party paying for such repairs during the duration of the joint ownership is entitled to be reimbursed for half of such expense upon the sale of the home.

Upon the execution of the previously agreed-to event, the home will be sold or purchased in its entirety by one of the spouses. If the parties decide to sell the home, the proceeds from the sale will be split evenly. If, however, one of the spouses wishes to continue retaining possession, that spouse may buy out the other spouse’s share. This buy-out may be accomplished in any of the following ways:

Paying the other spouse the fair market value of the home

• Refinancing the home
• Trading the home for other property

Sometimes, the best option is to sell the home immediately and split the proceeds of the sale. This is often the best plan financially, as it allows each spouse a flow of cash with which they can purchase a smaller home. Additionally, it allows the spouses to split quickly, especially in instances where there are no children from the marriage, and it allows the spouses to start over their lives in new homes, where there are no painful memories.

For more information on domestic and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

The Canada Divorce Act recognizes three grounds for a divorce: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the parties being separated for one year, even if there has been adultery or cruelty, because proving adultery or cruelty is complicated and time consuming.

The one year period starts from the time at least one spouse intends to live separate and apart from the other and acts on it. You don’t need a piece of paper or a court order to be separated because there’s no such thing as a “legal separation” in Canada. You can deal with all rights and obligations that arise due to the breakdown of your marriage without obtaining a divorce. You do this by negotiating and signing a separation agreement. A separation agreement is a contract between two former spouses that sets out each party’s rights on issues such as custody of and access to the children, division of property, child support, and spousal support. However, it’s best to obtain a divorce at the same time. The divorce legally ends your marriage and allows you to re-marry.

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer