Ontario Family Law Blog

New Pension Legislation in Ontario Effective January 1, 2012

Brian Galbraith — Thu, 29 Dec 2011 12:04:23 -0500

Matthew Krofchuk has written a excellent blog at Divorce Happens Blog regarding the changes to the pension division legislation in Ontario which came into affect January 1, 2012. Matthew is with Krofchick Valuation so knows his stuff.

The biggest impact of the new legislation is that you can now divided Ontario pensions at source if you want. So, let's say you have a pension worth $60,000. In the past, you would have to give your spouse $30,000 to equalize the value of this asset if all other assets and debts were equal. Now, you can arrange to have your pension plan transfer to your spouse $30,000 into a locked in savings vehicle (LIRA).

Here is Matthew's blog... it explains it well....

Beginning January 1, 2012 new legislation passed by the Ontario legislature will result in a dramatic change in the way pension assets are divided between divorcing couples in Ontario. According to the Ontario Family Law Act (FLA), the value of married spouses’ pension assets must be included in family property, so the new pension rules could potentially affect a large number of married people in Ontario.

Are you one of them?

Well, for starters, the new rules – formally known as Bill 133 – only apply to spouses where no court order, family arbitration award, or domestic contract that provided for the division of pension assets between the two spouses was made before January 1, 2012. If you’ve entered into any one of these arrangements before the end of 2011, you’ll have to stick it out under the old rules.

The new rules also affect only those pensions covered by the Ontario Pension and Benefits Act, or in other words, provincial pensions. So if you or your spouse is a member of a pension plan that operates at a nationwide level like those available to federal public service employees or banks, for example, the value of the marital pension will be calculated in exactly the same way it was before. Provincial plans, however – like HOOPP, OMERS, and Ontario Teachers’ Pension Plan – will be directly affected by the new rules and there will be a number of changes divorcing spouses with pensions like these should be aware of.

The first major change involves just who’s calculating the value of the pension. Pensions are currently valued by third party actuaries retained either by one (or both) of the divorcing spouses or their lawyers. The new rules, however, no longer give divorcing couples this option. Beginning in 2012 divorcing spouses will have to apply directly to the pension plan administrator to calculate the value of the pension to be divided as net family property. You will need to appeal to them directly by filling out a form from the Financial Services Commission of Ontario’s (FSCO) website and they will likely charge a fee for their services.

The new rules also allow divorcing spouses to transfer the value of the member spouse’s pension in the form of a lump sum payment if they desire; this option was not available under the old rules. Previously, the only way that a spouse could receive their portion of their partner’s pension was either as a percentage of monthly pension benefits, when they became payable, or indirectly through negotiating their settlement (kind of a, “you get the house and I’ll keep my pension” arrangement). It’s important to know that this new lump sum option is just that: an option. Spouses can still elect to go at it the old fashioned way if they desire.

The last big change involves how the value of the pension is calculated. As they relate to pension valuation the new rules don’t contain any provisions that require the spouses to do anything over and above what they already do; you still have to get that pension valued. However, the pension administrators – now the folks in charge of calculating the value of these pensions – will not be applying traditional actuarial practices in valuing them. The new rules mandate that all pension valuations be performed using a prescribed formula that should apply to all pensions.

This last change appears to result from an effort by the province to minimize conflict and lengthy court proceedings. By setting out a simple formula for the administrators there’s very little room for either party to argue or to revisit the calculation at some later date in light of a change in circumstances, both of which were not uncommon under the old rules. The downside to this approach, however, is that not all pensions are created equal (and certainly, not all divorcing couples are either). The new rules don’t make any provisions for the kinds of unique circumstances that could impact the value of pensions – like retirement ages or health issues – but unless the Courts decide that these issues should be taken into account as they arise, we’re probably stuck with them for the time being.

By Matthew Krofchick

Surviving Holidays Without Your Children

Brian Galbraith — Wed, 21 Dec 2011 16:13:55 -0500

Suchada, also known as Mama Eve, did an excellent blog about what to do when you don't have your children for the holidays, especially for the first time.

She is honest, insightful and offers hope about how to cope without your children.

Divorce sucks. You have a choice how you respond to its challenges. You can make it worse or you can take Mama Eve's good advice and make the most out of a difficult situation.

In time, it gets better. Truly... it does. Hang in there.

Here is her blog:

Acouple of days ago my children left on their first trip without me.

My husband and I separated earlier this year (I will write more about this later, and yes, it’s one of the reasons I didn’t keep up with my blog for a while). While much of this has been difficult, nothing has been harder for either of us than being away from the kids for the holidays. I got them for Thanksgiving, and he took them to see his family in Ohio for Christmas.

It sucks.

However, I try to make the best of even the worst situations, so here goes: my top 5 ways to survive being away from your kids for the holidays.

1. Stay busy

There was no question that when my boys got tickets to Ohio, I was getting a ticket to somewhere. I didn’t want to stay at home by myself and be lonely. So I’m flying to Florida to see my parents, and I’ve packed my schedule full of activities I love to do. If I’m bored I know I will wallow in my loneliness and guilt, so my goal is to not let it happen. And on the positive side, it’s been more than three years since I’ve had time to myself anyway, so I’m going to take full advantage of it with things that aren’t easy to coordinate with two little ones – like scuba diving and sailing and some nighttime fun.

2. Be flexible

While I would love to get on the phone and Skype with my little ones during the times it’s convenient for me (when I wake up, before I have dinner, a quick minute between errands), I have to remember they’re busy with their dad and his family. They have their days filled up with relatives who haven’t seen them in years, and grandparents that want to play with them, and sightseeing trips to all kinds of exciting destinations. If I want to talk to them and see them, I need to remember to be ready for when they have a moment, and not count on them to squeeze in regular appointments during a special trip like this.

3. Make memories

Since I know it isn’t easy to coordinate regular phone calls and Skype sessions, I decided to port myself to where they are, on demand. I made video recordings of me reading a stack of their favorite books, and then posted them to YouTube, and also a video just to tell them how much I love them and miss them. It’s not the same as interacting with them, but at least if they get lonely they can see my face and hear my voice reading something familiar anytime, anywhere (thanks to laptops and smartphones). Another benefit is it allows them to keep up part of their bedtime routine in an otherwise unfamiliar environment.

4. Remember it’s not all about you

This was the hardest thing for me as this situation unfolded, but once I accepted it, it’s been the most freeing. My kiddos are having a big adventure with a capable parent, surrounded by a big family that adores them and is thrilled to see them for the holidays. I miss them terribly, and I want to cuddle with them and smother them with kisses, but they don’t need to know how painful this is for me. What’s going on between their dad and me is an adult problem, and my boys don’t need to feel the weight of it. While I would do anything to be with them, I can’t change it, and moping and reminding everyone of how sad I am doesn’t make it a better holiday for anyone (including me).

5. Find joy in what’s around you

While my ideal situation would be to spend the holidays with my boys, I can’t pretend there aren’t a lot of positives to my Christmas plans. I will be with my parents, and my sister and her family, in a beautiful location with many friends. I will be able to go on adventures that aren’t easy to coordinate with two little ones, and I have friends and family who love me, and are thinking of me and praying for me. I know not everyone is so fortunate when they’re away from their children, but I believe something good can be found in even the dreariest circumstances. Even if it’s rock bottom, it means better days are coming.

I hope you all have restful holidays with people that love you, and I will see you again in the new year. Merry Christmas and lots of love!

Your First Christmas, Hanukkah or Kwanzza Since Divorce? Ugh.

Brian Galbraith — Thu, 08 Dec 2011 12:31:26 -0500

Are you dreading Christmas? Will it be your first special holiday since your separation? Are you depressed about not having your children for New Year's Eve, or Hanukkah, Kwanzaa or some other special day. Whatever the holiday, you are not alone.

I remember the first Christmas that my three boys were with their mother Christmas Eve and Christmas day. I cried and felt depressed most of the day. The time seemed to creep by so slowly. I felt all alone and like a failure.

I should have taken my 6 year old son's advice.

A few days before Christmas, he knew he would spend Christmas Eve and Christmas day with his Mom because that's what we agreed. So, he asked me to write a letter to Santa and ask him to come to my house on December 26th instead of the 25th. My son said that Santa comes to Steve's house (Steve is my friend who is divorced with kids too) on the 26th so he was sure he wouldn't mind coming to our house then too!

Of course, Santa did come on December 26th, even without a letter, but I think the message my son unwittingly was giving me was that it does not matter when we celebrate Christmas...lets just make whatever day we have together full of love, gratitude, Santa and fun. He knew Santa (and joy) would arrive whenever we wanted them to arrive. We just had to schedule it.

To help make your holidays special, here are ten things you can do:

Ensure your schedule is specific. You and your ex spouse should confirm well in advance when each of you will have the children. If you don't have specific times already agreed, negotiate the days and times as soon as possible. There are too many other sources of stress in December so try to nail down your times with your children now.
Don't fight over which days you have your children. Whenever you have them, make it special. If you really need particular days, offer to trade days with your ex spouse or give your ex spouse those special days next year. Treat your ex they way you would like to be treated, even if it isn't reciprocated.
Do something special for yourself. I make myself some of my favorite food, pour myself some wine, watch some basketball in front of the fireplace and wrap presents all day on December 25th. Actually, I look forward to my day spent all by myself. I am totally relaxed and ready when the boys come over on December 26th.
Support your children having a good time with their other parent. If you need to speak to someone about your sad feelings, talk to a friend or therapist - not your kids. The children don't need to hear it. They need to hear that it is okay to have fun with their other parent too.
Create new traditions. This is a new beginning for you and your children so don't try to replicate the past. Find new ways to celebrate the event. You can preserve some of the past traditions but find new ways of celebrating too. My parents always put a maraschino cherry on the top of our grapefruits Christmas morning so I continue to do the same now. Change things up too... I started singing Christmas carols after our Christmas dinner.
Get outside. Go for a walk or ski or snowshoe. There is nothing more rejuvenating than being outside with nature and your family. When your kids are with you, take them outside too. A good snowball fight can really build up an appetite.
Give of your heart. If you have just recently separated, money is likely short so don't try to spend like you did in the past. Do something special for the people you love. Maybe you can write a special little poem for each of them or list twenty ways you appreciate them. Gifts often don't have lasting meaning. Can you even list five gifts you received last year or the year before? It is the feelings of love and appreciation that last forever.
Stay sober. If you over-drink, you run the risk of crumbling into a pile of self-pity and depression. Nobody wants to see that and certainly your kids don't need to see it. Have fun but be careful so you can keep it together emotionally, especially during your first Christmas since your separation.
Surround yourself with positive, supportive people. If your family or friends are negative, remind them the season is all about gratitude, love and appreciation. Park you own negativity and search for the positive in everything and everyone, even your ex spouse.
Relax. Know that in time the holidays will become easier to get through and more fun. Just take a deep breath and get through your first set of holidays. Next year, it will be better. Trust me.

There are several wonderful blogs about surviving the holiday season after divorce.

Now, my youngest son is 12 years old and he says the best thing about Mom and Dad having separated is that he enjoys "two Christmases, two Easters and two Thanksgivings!" He says "if you like that kind of food, it's great!" Let me assure you... he certainly does like "that kind of food!"

So make it a Merry Christmas, Happy Hanukkah, Joyous Kwanzaa or whatever special holiday you are celebrating this year. Joy will come whenever you schedule its arrival. It is up to you.

Kids in Divorce. What Do They Need?

Brian Galbraith — Mon, 24 Oct 2011 11:36:17 -0500

Here is a link to a fantastic set of articles about children and divorce. It includes the following:

What children of divorce need
Age level reactions to loss
10 Commandments of Divorce
Steps for Recreating a Strong Single Parent Family
Four Types of Parental Relationships Post-Divorce
Plus more.....

It was put together by Rainbows which is a non-profit organization committed to helping children and teems grieve and grow after loss. Go to www.Rainbows.ca.

Rainbows offers peer support for children of all ages who are grieving a loss. Since 1983, it has served over 2.5 million kids working through schools, faith communities, agencies and other organizations. There are 7 age-specific programs that really help kids express their feelings, learn and grow through their parents' divorce. It is an amazing program.

I recently met the founder of Rainbows, Suzy Yehl Marta, at the Annual General Meeting of Rainbows Canada. She is an amazing person and Rainbows is a great organization. I am so proud to be on the Board of Directors for Canada.

If you have children and you are going through a divorce, let Rainbows help them get through it. Learn more at www.Rainbows.ca.

Galbraith Family Law Partners with Starting Over Show

Brian Galbraith — Thu, 20 Oct 2011 10:17:21 -0500

Barrie ON Divorce 'Expo' Eases Stress of Breaking Up!

“The Starting Over Show,” an event dubbed as Ontario's first Divorce and Separation Expo is being staged to give separating and newly single people access to the professional services needed to move on with life.

Advice, Seminars and Professional Expertise all in one place. This is the occasion to have access to all of the experts all in one place.

Galbraith Family Law will be joining a team of Professionals addressing every aspect of the Divorce and Separation Process.

www.StartingOverShow.ca

"When I first separated, it was horrible! I didn’t know where to turn, who to talk to and how to move forward. Along with my self esteem, my finances were devastated and my credit was severely damaged. I was seeing a lot of my friends going through the same as me and yet there was very little help available. What shocked me was that there was really no one place to seek out help for ALL of the issues I was facing!!”

“The Starting Over Show” will offer information on coping with stress, dealing with children and legalities and advice on various issues such as finances, credit counselling and property issues. It will be held at the Allandale Community Centre in Barrie Ontario on Saturday Nov 5th and Sunday Nov 6th 2011.

“Divorce and Separation is not just about the obvious legal documents and child custody issues,” says Carol Matthews, event coordinator, but it is also about financial issues, coordinating the move, maintaining your credit, and ultimately reinventing yourself as a single person again.”

According to Stats Canada almost 80,000 Canadian couples divorce each year, as well as many thousands of co-habiting couples. People are needing to extricate themselves from joint finances, real estate, investments and lives.

Divorce is one of the top contributors to Bankruptcy, credit damage and stress induced health issues. The Starting Over Show will host hourly Seminars addressing such issues. “Often people who are separating or divorcing think they need a lawyer, but they don't think about the need for a home appraiser, tax planner, moving company, realtor etc.,” says Ms. Matthews. “The goal of the fair is to bring together all kinds of professionals and services that people WILL need when they are facing a divorce or separation,”

“It's the first-time such a forum has been held in Ontario,” said Darren Gingras, President of Canadian Separation Services, a sponsor of The Starting Over Show. "We are most certainly not promoting divorce or separation, instead we recognize that Divorce and Separation is a very stressful period in individual’s lives and we are making the professional services and options available to individuals in one location.” "It is about bringing together experts who will help people get through a break-up in the best way possible."

The Starting Over Show will be held Sat Nov 5th and Sunday Nov 6th at the Allandale Community Centre, 190 Bayview Avenue in Barrie ON. Show hours are 10am to 6pm both days. Entrance to the Expo and seminars is $20.00 at the door.
For more information contact: the Galbraith Family Law, Darren Gingras at: 1(866) 748-6363 or Carol Matthews at ccmatthews@rogers.com. www.StartingOverShow.ca

The Story Of Your Divorce: Blue Valentine

Brian Galbraith — Mon, 26 Sep 2011 09:53:08 -0500

If you are separating or divorcing, you have a story to tell. It's a story that starts with happiness and hopefulness and ends in sadness and separation.

When I separated, I wanted to tell my story but, frankly, it seemed nobody wanted to hear it. My friends and family felt awkward and uncomfortable yet I needed to tell it - over and over and over again. Nobody wants to hear a broken record so I guess I can't blame them. My point is I felt all alone with my story.

As a divorce lawyer, I hear stories from my clients every day.

Do you have a story about your separation and divorce? Maybe you have friends and family who will listen. Another great way to tell your story is to journal it. Write it out as many times as you want.

Of course, you don't want to get stuck in your story. Eventually you need to let it go. I remember one person who told me the story of their divorce. They were very passionate, full of anger and visibly in pain. What was remarkable is that their divorce had occurred over ten years ago. Clearly, they were stuck in the past. They had not let go.

Maybe you can try creating a time line of your life, highlighting the major events or turning points. Try to understand your mistakes, and your spouse's mistakes, and then forgive both your spouse and yourself. When you are ready, shred or burn those stories so you can put them behind you.

I suggest you find a Family Coach to help you. These kind people have training in therapy with a focus on the impact of divorce. They will listen to your story and help you move through it.

I watched this movie over the weekend. It is all about the telling of the story of divorce. It's kind of sad but it also reminded me that we all have stories. It is worth watching. I hope you will somehow feel you are not alone.

Common Law Relationships and Property Division in Barrie, Ontario

Brian Galbraith — Wed, 07 Sep 2011 07:52:33 -0500

So, you lived together in a common law relationship but now it has come to an end. Your friends say "When you separate, it's just the same as if you had been married. Everything is 50/50!"

This is an urban myth. In Ontario, it is more complicated.

Of course, the starting point is that you keep the assets and debts in your name and your partner keeps the assets and debt in their name. The question is whether either of you have to share the value of your assets with the other.

A recent decision of the Supreme Court of Canada (SCC) known as Kerr v. Baranow, radically changed how we look at the rights of common law partners upon separation regarding property division.

The SCC has now said that if there is a “joint family venture” there should be a fair division of the assets acquired during the relationship.

In lower court decisions since the SCC decision, if there is long term relationship, especially with children, and there has been an joint effort to work together for the betterment of both parties and an intermingling of the finances, there tends to be an equal division of the assets acquired during the relationship.

Although we don't have many cases decided since the decision at time of writing this blog, I think we will see a trend toward an equal division of property upon separation when the parties have been living together in long, stable relationship, especially if there are children, the parties have intentionally became financially intertwined and they worked collaboratively toward mutual goals.

If you have lived together for a short period of time and you kept your finances and financial goals separate, you might not have a right to a share in any of your partner's assets at all. It may be that each party just keeps that which is in their own name and that jointly owned property is shared equally.

Of course, your case may be in between the two extremes. You might have a right to some of your partner's assets. It all depends on on the facts of your relationship whether you have a claim and the extent of your claim.

Of course, another issue is spousal support. If you have lived together for more than 3 years or you have a child together and your incomes are different you may have a right to spousal support. Check out this article for more information.

You are wise to seek the advice of a family law lawyer, just to get an idea whether you might have a claim to your partner's property when it is a common law relationship. It's murky water.

New Wife and Ex Wife: A Complicated Relationship

Brian Galbraith — Tue, 09 Aug 2011 12:57:30 -0500

All relationships are trying at times but perhaps one of the more difficult ones is between a "new wife" and the "ex wife". (Probably this is true for the "new husband" and "ex husband" too.)

Donna Ferber (pictured on the left) offers another great blog in which she explores this challenging relationship.

Donna writes:

Judged as guilty before even tried, these women are pitted against each other by circumstance. Stereotypes abound; the first wife was a “crazy nagging bitch” and the second one “a cheap slut”!

Unfortunately, these stereo types often eclipse the potential for a positive relationship; these women are preprogrammed not to like each other by societal misconceptions. In truth, had these women met under different circumstances they might have been friends.

Donna has it right.

There is a natural inclination to think poorly of the new spouse by the former spouse and vice versa. In most cases, the dislike is petty and without merit. But, alas, emotions are without logic. Emotional responses to other people can overwhelm our logical side. Intellectually, we may want to judge the other person on their merits but our emotional side won't let it happen.

Donna explores various reasons why the "ex" and the "next" may have challenges making their relationship work.

Here is a surprising story about a woman who was accepting of her ex husband's new life partner.

I once represented a woman whose husband had discovered that he was gay and left her for man. This other man was involved in the lives of their children yet my client was not at all bothered his new role. I asked her how it was that she was so accepting of this new relationship and person. Her response was interesting. She said something like "I am a woman. I can't compete with a man. It's apples and oranges. Now had he left me for another woman, I would have hated the bitch and wanted to scratch her eyes out!"

Who knew?

Relationships are complicated, surprising and challenging.

If you are an "ex" or the "next" know that you are not alone in your struggle to maintain a positive relationship with the other. It's a challenge.

If you are the one in the middle, understand that the relationship of the "ex" and the "next" is not an easy one for anyone. Don't fuel the fire. Just be understanding.

This too shall pass... hopefully.

"Mandatory Information Program" Comes Too Late

Brian Galbraith — Mon, 18 Jul 2011 10:43:45 -0500

The Attorney General Chris Bentley, pictured on the left, announced that effective July 18, 2011, all new applicants to Family Court in Ontario must attend the Mandatory Information Program. This is a 2 hour program held at courthouses across the province explaining the Family Court process and alternatives. The intention of the program is to let people know that there are less painful ways to resolve their family law issues than going through Family Court. The motive is excellent.

The problem with the program is that it is made available only after a court action has been commenced. By that time, the parties are often entrenched in their positions and ready for a long drawn out fight. The mud throwing has begun.

It's like advocating against drunk driving to car accident victims laying in hospital beds. It would be better if parties knew about alternatives to Court before they start their Court case....before it's too late.

If we could somehow reach out to the public to let them know that they would be better off starting with Collaborative Practice instead of Court, society would be better off. Collaborative Practice is an excellent way to resolve family law issues quickly and cost-effectively, while minimizing the pain, especially for the children. It keeps people focused on problem-solving rather than verbally beating up each other. It keeps people out of Family Court. It works.

I don't mean to rain on the Attorney General's parade. I believe his heart is in the right place. Families going through a divorce need to know that Court should be seen as their last resort. It's just about timing. The public needs to know before they commence a Court action.

Older Couples Getting Divorced in Barrie, Ontario

Brian Galbraith — Wed, 22 Jun 2011 14:06:04 -0500

Are you over 50 years old and thinking about getting a divorce? You are not alone. More and more older couples are getting divorced. Deborah Moskovitch, author of The Smart Divorce writes an interesting blog in the Huffington Post about this phenomenon. She says we shouldn't be surprised because the reasons for marriage have changed and the stigma of divorce has diminished.

Deborah writes in her blog the following:

Women wanted someone to take care of them, men wanted to be in a position of power. Today, as more women become financially independent, looking to be taken care of is no longer what many are seeking. Rather, both women and men want an equal partnership in the relationship, and a best friend. Of course, there are many other factors resulting in the breakdown of the marriage, I don't want to over simplify it. But, if you consider how expectations surrounding marriage have changed over the last few decades, and the thought of no longer becoming a social outcast upon divorce, these are some influencing factors behind the increasing divorce rate amongst couples in long term marriages.

Of course, another factor is simply that as the baby boomer generation grows older, of course, the number of divorces of older people grows greater too. Baby boomers represent about 29% of the population of the United States.

Deborah points out that the stigma of divorce has diminished which suggests it is an easier decision for older couples to make now than it was in the past. While it is true that the stigma has diminished, I have never met anyone, especially those in the baby boomer generation, who have taken divorce lightly. It continues to be an isolating, painful process.

In the past, there was great admiration given to those couples who stayed married "till death". I feel that if two people can find a way to stay happy together for many years, it is wonderful but if they are miserable and "stick it out", I don't see what there is to celebrate. Frankly, I never understood why staying in a relationship that was terrible was worthy of admiration. What's the point?

People change. The challenge is to find ways to change together and to give each other the room you need to grow and renew. This can take a lot of work and patience. Sometimes it just is impossible.

My parents were married 54 years when death separated my father from my mother. I think they were happy together throughout their marriage. I hope to reach the same plateau. I look forward to 50 more years of matrimonial bliss. I'll be 99 years old! Wow!

How To Tell Adult Children About Your Separation

Brian Galbraith — Tue, 07 Jun 2011 09:34:29 -0500

Separation and divorce is hard on children. Frankly, it's hard on everyone, adult children included. Often separating couples see their adult children as being more able to cope with their parents' separation than younger children. I am not sure this is true.

Erica Manfred is the author of "He's History, You're Not: Surviving Divorce After Forty." and recently authored an interesting article in the Huffington Post about how to tell adult children of your divorce.

She offers eight "rules":

Give the news in a compassionate way. Don't just email, text or phone them. Do it in person.
Don't lie. Tell them the truth about your marriage.
Show empathy. Try to support your children. It's hard for them too.
Don't put them in the middle. Don't ask your kids to take sides.
Don't depend on your children for advice. This is another way of putting them in the middle. Let them love both parents.
Don't ever tell them "you're the reason we stayed together". This can make your children feel guilty and feel that their whole childhood was a sham.
Call a truce with your Ex. You will always be connected with your spouse through your children so try to get along.
Don't shove your new boyfriend or girlfriend down your kids' throats. It is just too awkward and could lead to resentment. Give them time to adjust.

I agree with all of these suggested rules except for the second one. Erica suggests that you should tell your adult children the reasons for the divorce. She says if there was an affair, be honest about it.

I feel that telling your children about the reasons for the marriage ending will likely cause the children to take sides. This is not helpful to your children. They ought to be able to maintain a relationship with both parents. The problems you two had has nothing to do with their relationship with each of parent. Telling them about the affair can only lead to more strife and the children feeling caught in the middle.

Some may argue that adult children are better able to cope and understand their parents' separation yet I argue they are still your children. Let me give you an example. Intellectually, your adult children know that you have a sex life whereas when your children were young, they had no idea. Young children walking in on their parents making love is shocking. Walking in on mom and dad having sex would be just as awkward and disturbing to the adult child. Just imagine it for yourself! Yuck!

Likewise, learning the sordid facts around the breakdown of your marriage would be at the very least awkward and at the worst, repulsive. Simply put, I don't see how it could benefit your children. They will tend to take sides and "divorce" one of their parents. Don't make your adult children casualties of your divorce.

Otherwise, I like the advice offered by Erica. Be sensitive to your adult children when you tell them you are getting a divorce. Treat them the same way you would if they were still your cute little bundles of joy even if they are now your adult, money-sucking, know-it-all children. Either way, they are still your darling children.

Parental Planner: A New Communications Journal for Separated Parents

Brian Galbraith — Wed, 01 Jun 2011 09:53:14 -0500

The Parental Planner is a new way for separated parents to communicate with one another. It is a essentially a communications journal that is passed between parents at the time of exchanging the children.

The advantage to using a communications journal is that it avoids face-to-face confrontations. You can also ensure all the pertinent information is exchanged. It also serves as a record of communications between parents. It helps parents who are separated to try to maintain some consistency in their parenting between homes. I also like that it has plastic folders in it so that documents such as health insurance cards can go back and forth easily.

It is best to keep it available so that you can jot information into whenever the need arises.

Although it not intended to be shared with the children, it should be written in such a way that if your children do stumble upon it, you will be proud of what you have written in it. So don't criticize the other parent. Always be respectful of one another in your communications.

Don't forget to also share positive events in the children's lives such a milestones and achievements.

If you are angry at the other parent, put the journal down! Let your steam off some other way and then, when cooler heads prevail, you can write in the journal.

The Parental Planner is simple and yet comprehensive.

Learn more about it at www.ParentalPlanner.com.

And it's Canadian!

Double Dipping. Paying Spousal Support from Pension Income

Brian Galbraith — Fri, 27 May 2011 10:01:53 -0500

When you divorce, what would you rather have - a valuable pension or a home worth the same? Or does it matter?

If a pension is worth the same as the equity in the home, the property settlement is easy. One person keeps their pension and the other keeps the house. Technically, this seems like a fair settlement but there may be complications.

Retirement

Often the pension holder is the bread winner for the family so will be paying spousal support to the other spouse. The challenge is that when they retire, the pension holder will have an income from the pension but the one with the home may not have any income. The pension holder will say "Hey, I shouldn't have to pay you spousal support from my pension... you got the house because it was of equal value to my pension.... if I have to pay spousal support from my pension, that would be double dipping!"

In the case Boston v. Boston, the Supreme Court of Canada agreed. It said that in most cases it would not be fair that the pension holder would have to pay spousal support to their spouse from that portion of their pension income that has been equalized. They did say that any pension that was acquired post-separation or any other income could be considered for the purposes of determining whether spousal support should be paid. So, if the pension income is $5,000 per month and $4,000 of it was based on the pension acquired at the date of separation (which was equalized), then only $1,000 per month would be considered as the payor's income from which spousal support could be ordered. With an income of merely $1,000 per month, spousal support won't likely be ordered.

There is an assumption in the Boston case that the home owner should be able to generate a stream of income from the home asset when a retirement income is needed. For example, the home could be sold and the money invested into an annuity. As a result, both parties are in a similar situation.

Exceptions

There are exceptions to this general principle against double dipping. In Meiklejohn v. Meiklejohn, the Ontario Court of Appeal states it may be appropriate to order spousal support be paid from an equalized pension when the recipient is in dire need, has little ability to earn an income and most of his or her assets are tied in their home.

If you are the pension holder, you will want to include a provision in your separation agreement that specifically prevents double dipping. If you are the home owner, you will want to argue against such a provision and leave open the potential of spousal support from the equalized pension.

Pension Division

There is pending legislation in Ontario that will allow a pension to be divided at source. That means that a portion of the pension can be transferred directly to the other spouse. You can do this with some federal pensions already. This new legislation will be welcomed. It will be mean that each can have a portion of the pension and each can have a portion of the equity in the home. It will certainly make for better settlements. I anticipate there will be fewer arguments about double dipping after this legislation is finally passed.

My mom used to say "You can't have your cake and eat it too!" but she is wrong when it comes to double dipping. There can be exceptions.

Why Do I Need To Do A Sworn Financial Statement?

Brian Galbraith — Tue, 24 May 2011 12:00:00 -0500

Everyone hates having to do a sworn financial statement. This is a court form used in Ontario to list your assets, debts, income and expenses. It is long, cumbersome and, frankly, a pain to complete. If your case is in Court in Ontario, you must complete the form. The Rules require you to complete it and the court clerks won't even open your court file without you filing a sworn financial statement.

If you aren't in court, I don't blame you if you don't want to complete it.

As your lawyer, we ask you to do a financial statement to ensure that you are protected. Yes, to protect you! We want you to fully disclose your assets and debts on the date of separation and date of marriage to ensure that your spouse cannot wiggle their wait out of the agreement, claiming that you were hiding assets. The Family Law Act allows the Court to "set aside" (which means not enforce) a separation agreement if there has not been full disclosure.

The financial statement is an easy way to ensure that there has been full disclosure. It is like a checklist for lawyers.

We ask your spouse to provide a sworn financial statement for the same reasons. It is an easy way to ensure we have a complete financial picture from him or her too.

Once we have a complete financial picture, we can advise you as to the range of outcome should the matter proceed to court. In other words, we can give you legal advice. Without complete disclosure, we can't give you advice: we are just guessing.

Lawyers can get into big trouble with the Law Society if we give advice based on guesses or assumptions that turns out to be bad advice. Okay... you got me... we are also covering our own butt when we are asking for sworn financial statements.

Disclosure is Essential

It isn't the financial statement itself that is important - what is important is that there is full disclosure. It's just that the financial statement makes it easy.

A recent case before the Ontario Court of Appeal, known as Ward vs Ward clearly states that the exchange of financial statements is not necessary but full disclosure and knowledge of the other person's financial circumstances is essential. In that case, the parties exchanged some documentation with the assistance of the family's accountant. Financial statements were not completed but there was full disclosure and knowledge of each other’s financial circumstances.

The court describes the disclosure process in that case as follows:

“...neither party filed a financial statement, nor was one required under the terms of the process to which they agreed. While this did not diminish the obligation to disclose, in this case, the parties relied on the collaborative law process and other avenues of disclosure, including net family property statements and information from Mr. Wetstein [the family friend and accountant]”

In the end, the Ontario Court of Appeal determined that the husband's disclosure and the wife's knowledge of financial circumstances of the husband were sufficient even without sworn financial statements exchanged. The Court refused to set aside the agreement reached.

Lawyers often use the financial statement because it is easy. It lists all of the categories of assets and debts so you don't miss disclosing something important. In our law firm, we insist on backup documentation to verify every value in the financial statement. It is the backup documentation that is important and fulfills the obligation to disclose.

Collaborative Cases

In Collaborative cases, the Financial Specialist works with the clients to obtain a complete and accurate representation of the financial circumstances of the parties, usually without the use of a sworn financial statement. The Financial Specialist does a report and attaches the backup documentation for every value. Both lawyers ensure that their client has fully disclosed everything. Equally important, every lawyer must review what the other client has provided to ensure s/he has provided full disclosure.

In Collaborative cases, as lawyers we always carefully review the Financial Specialist's report with our client to ensure it is accurate. Ultimately, the lawyers will ask for a sworn statement from each client stating that they have fully disclosed their assets, debts and income and that the Financial Specialist's report is accurate and complete. Alternatively, the lawyers will add wording to the separation agreement that states both parties are warranting that they have fully disclosed everything and that the Financial Specialist's report is accurate. Either way works.

Full disclosure is essential. If you are trying to hide assets or income, we won't be your lawyer. We don't play those games.

If you don't like having to provide full disclosure, we get it. You are not alone. Complain all you want. We have big shoulders. We want your agreement done right and made to last so just get it done. It’s for your own sake.

How to Schedule Summer Access

Brian Galbraith — Mon, 16 May 2011 16:30:58 -0500

Summer is fast approaching. Now is the time to begin to work on your summer access schedule.

Some separated families have the summer schedule set for every summer. Mom will have certain weeks every year and Dad will have other weeks. There is very little negotiation or planing involved. This is a nice arrangement, if you can manage it. The disadvantage is that life is not static. Sometimes the opportunity to negotiate the children's schedule gives you a chance to accommodate the varying schedules and attend special events that arise each summer.

For most families, there is a lot of negotiation and compromise involved in scheduling the summer schedule.

Here is how to do it.

Find a clean calendar you can work with to develop a plan.

First, write down any dates on the calendar that are carved in stone. For example, if your holidays are determined by your employer and you can't change them, write those dates on the calendar. If your children have any activities that cannot be changed, write those down too.

Next, write down the preferred dates or activities you would like to have but can live without. Use a different color so it is clear that these are not "carved in stone" dates.

Then do the same for your ex spouse. If you know of any "carved in stone" dates for your ex, write them on the calendar. If you are aware of any preferred dates for your ex, write those down too.

Now you just have to start carving up the time. Remember, you are trying to reach an agreement so you have to try to come up with something you think your ex spouse can live with too. You both can't get every favored date. So make some compromises. Share the favored dates.

Get your ideas for the summer schedule over to your ex spouse as soon as you can.

I always suggest that you send to your ex spouse a couple of options so they have something to consider. If you send just one choice, it may feel like you are trying to impose your wishes on your ex spouse. Put a short explanation for the dates you have chosen and the compromises you willing to make. You don't need a long narrative. Short, factual and clear is best.

Google calendar is a free internet service and is an excellent way of sharing a calendar with your ex spouse. You could create one that is only accessible to you and your ex. You could put your suggested schedule for the children over the summer on it and then seek input from your ex. In fact, the Google Calendar is a great way of keeping track of busy kids all year long. You can get alerts when changes are made to it.

When you get a proposal for the summer schedule, respond in a timely way. Waiting to hear just causes unnecessary stress for everyone. I know trying to figure out the summer schedule is frustrating but just do it anyway.

Once you have it nailed down, stick to it. Don't be changing it except in the event of some urgent arising. The idea of setting these dates in advance is to allow both parents to plan in advance. Last minute changes makes planning impossible.

If you can't resolve it, don't just run off to court immediately. Court is too expensive, slow and you lose control over the outcome. Court will take the fun out of summer. I suggest you work with a mediator or a Family Coach to find a compromise that works for the whole family.

One last thing... enjoy the summer time. This is when you have a great opportunity to spend some quality time with your kids. But don't forget the suntan lotion!

Co-parenting Rules and Breathing

Brian Galbraith — Thu, 05 May 2011 14:04:16 -0500

Parenting is not easy. Parenting when separated is even more difficult.

Mark A. Nacol, a Texas family law lawyer, in his blog Nacol Law Firm Blog does an excellent job describing the rules for effective co-parenting.

Mark's list of rules may seem to be "common sense" but when you are the parent trying to work with someone who either has rejected you as a spouse, or whom you have rejected, it is very difficult. Emotions and egos get in the way.

A key to responding to the other parent in an effective manner is to take a few minutes, even overnight, to consider your response. Too often knee-jerk immediate responses can cause more problems than they solve. This is especially true when you have first separated. The emotions are so raw that co-parenting is very difficult.

My advice: read Mark's rules and then take a deep breath. Consider your response carefully. Sleep on it. Co-parenting gets easier in time. Be patient. Soon Mark's "rules" will become "common sense". Until then...follow the rules and breaaaattthhhhhh...

Royal Wedding Spoof Video

Brian Galbraith — Wed, 20 Apr 2011 09:26:13 -0500

I realize that my blog is about issues related to divorce but this video of the upcoming royal wedding is so well done and funny, I just could not resist. The likenesses of the actors to the real people is just uncanny! Amazing job! A good laugh!

Enjoy.

"Divorce Happens, Now What?" A New Video About Collaborative Practice

Brian Galbraith — Tue, 12 Apr 2011 06:40:08 -0500

I interview people who went to Family Court and those who chose Collaborative Practice instead. Clearly, Collaborative Practice is the better way. I hope you enjoy the video.

Who Drives The Children For Access Exchanges?

Brian Galbraith — Thu, 07 Apr 2011 16:39:55 -0500

When you become a parent, nobody tells you that you will become a personal taxi driver for your children! You will drive them to their sports activities, their music lessons, their friends' homes and, if you have separated from the other parent, you might have to do some driving to and from their other parent's home.

I enjoy driving my children around to their activities. I view it as an opportunity to talk about everything going on in our lives. Sometimes we talk about something they hear on the radio (news, sports or opinion pieces). Sometimes we talk about the daily events of their lives. Sometimes we just talk about the weather or maybe someone will say "hey, that's a nice looking car". It doesn't matter what we talk about... the point is we are talking.

When parents separate, the question often arises: who should do the driving when the children move from one parent's home to the other?

If you and the other parent cannot work out an agreement on your own, here are the general principles used by most judges in Ontario:

If the children reside primarily with one parent, the other parent should do the pick up and drop off of the children. The reason for this is that it is assumed that the primary parent does more driving of the children to their activities since they are with them more often.
If the parents share about equal time with the children, they should share about equal driving responsibilities.
If one parent, moves far away from the other parent, the moving parent will usually have to do most of the driving for access exchanges.

Often clients argue about who has to do the driving. Neither wants to do it. At the high price of gasoline these days, I can understand their desire to minimize the amount of driving. On the other hand, the opportunity to spend time with your children, without the distraction of the television and the computer, is precious. I say "Don't argue too hard."

Take advantage of the opportunity to spend time with your children. Soon they will be leaving home and you will long for hours spent together going somewhere.... anywhere..... together.

Stay Connected With Your Children After Divorce With Facebook

Brian Galbraith — Wed, 30 Mar 2011 14:07:26 -0500

Communication with teenagers can be difficult at the best of times. When you are separated, it can be even more difficult.

I am always looking for ways to be part of my teenagers' lives. I enjoy Facebook and am friends with my three teenage boys on it. It gives me some insight into their lives without having to ask awkward questions. The key to staying their friend is to not make comments on anything they post. If you do, you will quickly embarrass them and will soon be de-friended. (One son blocked me from reading his wall. Yikes - that hurts! )

I have also taken the bold step to invite my sons' friends and even girlfriends (past and present) to be my friend on Facebook and, surprisingly, I have never been turned down. This gives me even more insight into the lives of my children and teenagers in general.

I think the boys are a bit more careful about what they post knowing I am their friend which, frankly, is a good thing. It prevents them from posting something that could bite them in the butt down the road when they apply for a job.

The New York Times has a great article about how Facebook can be used as an excellent conduit for communication with your teenagers. An interesting comment about the article is found at www.allfacebook.com. They have some great stories from other people's experiences.

I text with my boys. I email them. I speak to them on the phone. I Skype with them. And I spend as much time with them as possible. It's great being a dad in the 21st century. There are so many ways to stay connected with my kids.

Ooops.. Gotta go. My Blackberry is buzzing and vibrating... now just to figure out how it works so I can respond!!