Family Law FAQs

An unhitch member resource

 

A family lawyer answers your most frequently asked questions about separation and divorce

Thunder Bay family lawyer Lauren Conti, our first Live Q&A presenter at Family Law: what you need to know before you go in October of 2021, provides thoughtful answers and insight to the questions most asked by unhitch members and our growing community.

 

How do I determine a date of separation if I am still living with my spouse? 

 

If there isn’t a date known yet, then it can be unilateral: you can just pick it. 

 

You do have to let the other spouse know if you are the one suggesting the date: it has to be agreed upon by both of you. Separation is defined as living separate and apart with no reasonable prospect of reconciliation (which can occur when living in the same home).

 

A conversation with your spouse or ex-spouse is needed. And put it all in writing. So many people spend a lot of time and money fighting about this. If you can even just say via text or email, “I just want to confirm this is our date of separation” that is enough. It is so important, because the date changes the numbers for support calculations. There can also be tax implications which you should obtain advice on.

 

It’s important to say that the date of separation can change if there is family violence, but outside of that, it’s something where if the date is not already clear, one person can pick the date and just communicate it clearly to the other spouse for their input and agreement.

 

More information on date of separation recommended by unhitch: https://stepstojustice.ca/steps/family-law/3-figure-out-date-you-separated/

 

Is there a minimum time that you have to be separated (with a legal separation agreement) before you apply for divorce?

 

You have to have been living “separate and apart” for one year before you can file for divorce in Canada. 

 

You don’t need a legal separation agreement to get a divorce, and you don’t need to get a divorce if you are separated. You can live separated indefinitely, with or without a separation agreement. The separation agreement is your contract, your path, to how you agree you will live not being married anymore, but it is optional.

 

Can you leave the matrimonial home with children without a separation agreement? 

 

The answer depends on your circumstances, but if it is a matter of kids, then to help determine parenting time after separation, we look at the status quo, with lawyers or in front of the judge or with a mediator, we look at what has happened to date. 

 

So if you want a shared parenting schedule, you want to establish that as soon as possible, if you are able to. If you leave the home and you leave the kids and only see them some of the time and it goes on for months, then this is problematic if you want a shared schedule eventually because the status quo has been established now.

 

Maybe you even had a discussion, about you moving out and settling the finances and parenting time in a separation agreement down the road. But if at that time down the road, your ex-spouse now says to their lawyer, “Nope, I’m currently the primary caregiver and I want it to stay this way,” then it can become problematic very quickly.

 

My advice is to think of the big picture. You don’t want to be in a toxic environment, it’s not good for you or the kids, so outside of that kind of situation when you must leave for safety, try to plan for it. This is where a separation agreement comes in.

 

If you don’t have one yet, an option to this situation is nesting, where the kids stay in the home and the spouses move in and out. It is temporary and good for establishing shared parenting time as the status quo.

 

More information on nesting recommended by unhitch: 

Henderson Family Law: Who gets to stay in the family home after separation or divorce

 

Psychology Today: Are you Getting a Divorce and Thinking About Nesting?

 

How much should I expect to pay in legal fees if things are relatively amicable?

 

Typically a family lawyer would ask for a set retainer that sits in trust—this is normal—if you fire the lawyer, you get the money back. Or if they don’t use it all, you get the unused amount back.

 

At Henderson Family Law, we ask for a retainer of $2,500 to draft a Separation Agreement. 

 

Sometimes it’s the exact right amount, sometimes there is some money left over, and sometimes it goes beyond. Even when everyone agrees, there is back and forth, and changes and negotiations that are all billed.

 

And the more back and forth there is, and as complicated issues arise, it increases the costs. 

 

But remember that legal costs can be discussed and negotiated with your ex-spouse! It can be part of your plan. For example, in mediation, you can agree that you are going to jointly pay all the legal costs. So depending on how amicable it is, there are different options.

 

What happens to child support when one parent has the kids less than 40 per cent of the time?

 

Shared parenting time is when the kids spend at least 40 percent of the time with each parent. 

 

If the children are with one parent less than 40 percent of the time, then it’s considered the majority of time with the other, and that is now straight support: the parent with less time pays straight out to the other parent in an amount depending on their income. 

 

This means that the income of the parent who has the children in their care more than 60 percent of the time is not taken into consideration in this calculation of basic Table Child Support.

 

Keep in mind this doesn’t affect Section 7 expenses, because they are over and above child support payments.

 

Do we fill in financial statement forms based on the numbers now or when we separated? 

 

It’s always date of marriage and date of separation. Some current values will be relevant, for example, assets and equity, but the basics are always the dates of separation and marriage and then we adjust from there.

 

Don’t stress if you can’t gather all the information. It can take a while to gather especially if it’s been a long-term relationship. And we know people don’t always have records from 20 to 30 years ago. 

 

Your lawyer can help you decide if it’s worth tracking it all down and how to fill out these forms. You can ask those questions and have that conversation.

 

Can I buy a new car or house if I’m separated? Will it factor into equalization?

 

Again, it's the date of marriage, date of separation: so anything you buy after a separation shouldn’t go in the pot. 

 

If you are divorced or have a separation agreement, but want to change the parenting time arrangement, can we do this without lawyers? 

 

There is nothing stopping you from making the change yourself, but get it in writing, and find out how it affects child support. 

 

Separation agreements are there for when you stop agreeing, so you have something to follow. But we know kids are fluid and things change all the time. It doesn’t need to go through a lawyer.

 

You can do it yourself, but get it in writing, so you have evidence of what was agreed on.

 

If support payments are going through the Family Responsibility Office, you definitely need any change in writing that impacts payments.

 

Is there an age when the kids’ preferences about where they live is taken into consideration legally?

 

There is a misconception that it is 12. That’s not a thing. The magic age is 16—that is when the kids have more control, and they will have the ability to make decisions. 

 

When a judge is deciding, the children’s views and preferences always have to be considered, but there is a big difference between a 6-year-old vs. a 14-year-old and the weight given to each in these decisions. 

 

What do I do if I’m missing financial records for my date of marriage? 

 

Getting documents from 20 years ago that might be missing or destroyed is a good conversation to have with your lawyer. If you had a big asset on the date of marriage, it gets taken out of your pile when calculating your number in equalization, so if you had a big pile of money at the date of marriage, it’s worth going to the bank and pulling those records even if you have to pay.

 

Can my lawyer help me fill out my financial statement?

 

Financial statements are overwhelming: they are not fun. You can hire a clerk in your lawyer’s office to help you do it, or an accountant, and that would be cheaper than getting your lawyer to do it. 

 

It’s not uncommon for people to sit on this form because it’s hard to do and hard to find all the records. But you can ask for help and your lawyer can help you find someone to help you manage this if needed. You save money if you do it yourself, but it can be worth it to manage your stress to get help.

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Financial Planning FAQs

An unhitch member resource
 

Certified Financial Planners answer your frequently asked questions about financial wellbeing during and after separation and divorce.

 

Thunder Bay financial planners, Laura Fralick and Jared Johnson (IG Wealth Management), joined us in November 2021 for our Live Q&A: Financial Planning 101, providing their expertise and experience to answer the questions most asked by unhitch members about managing their money during separation and divorce.

 

Below is a transcript of part of our talk with Laura and Jared. You can also find a recording of a segment of this event under “Listen”.

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Who needs a financial planner? Is there such a thing as being “too poor” to seek out a planner? 

 

We like to say, “As life changes, a financial planner can help.” So everyone can benefit from planning.

 

And there is not necessarily such a thing as being “too poor” but also keep in mind that not too many of us can really work for free. 

 

If you are in really bad financial shape, take the consultation with a planner anyway as a place to start. Then you might want to put in time working on basic things to understand your situation, like paying off some debts and really working out a budget to keep track of your spending and expenses.

 

But I would argue that of my clients that have offered me the most growth potential, it’s often been those just starting out or starting over. Financial planning is activity based, and not always about having the big bucks behind you. Time and time again, we see someone that has a small investment account to start with, but they are very engaged with us, and then something takes off for them or they inherit money etc., and it all changes.

 

That was a reason I was very happy working at IG Wealth Management, for that philosophy. Remember, there are multiple planners out there who would be happy to meet with you and work with you as you make your way back up.

 

Do you have advice  for women who might be in a really tough financial jam, such as leaving a marriage with no income of their own, or who get deep into debt because of job loss or divorce? 

 

Here again, I think most planners would talk to a person in this situation for a consultation, so don’t be embarrassed to seek help if you need it. 

 

I also saw situations with some women in this boat, where as they got older, it got much better once they were getting help from the government through CPP, old age security or the guaranteed income supplement etc. 

 

For any low income earner, it can be very stressful, when you find that after paying for a mortgage and/or for your kids, there is not much left. A few hundred or few thousand dollars from the government can be a lifesaver so explore all those options.

 

And in general, I would say you need to know yourself, know your budget. If you have been avoiding creating a budget, now is the time to face that pain. You want to know exactly how much money you need to live every month, so you know what your starting point is.

 

You can even start this process with your bank or credit union, just to keep your chequing account under control, and your credit cards under control. Then go to a financial planner when you are ready. 

 

Never say never!

 

Where do you start when it comes to “gaining control of your financial ship” during hard or big life events like separation and divorce? 

 

Basically, you need to be doing an inventory. Take stock of what you know about what you have.

 

You may not even have all the questions formed in your mind yet, but you have to start somewhere.

 

So just start now, or at the beginning of the very next month. You are going to keep every receipt from every grocery store trip, every coffee shop. Keep track of every bill you pay. And balance your chequing account as you go. This helps you establish a new baseline for your living costs and your goals going forward.

 

You can’t do anything fancier with your money until you do these basics.

 

How do planners get paid (what are the built-in fees for service etc.)? 

 

There are different compensation models depending on where the advisor works. For example, advisors at bank branches are typically on a salary plus they get incentive bonuses if they hit certain targets etc.

 

As you get wealthier, you may move up to a stock broker level with an advisor, and they may make some income from fees generated from stock trading on your behalf or by recommending a portfolio of mutual funds etc.

 

At IG Wealth Management for example, advisors tend to earn money on a small percentage of the investment fees generated from inside their clients’ investments. The percentage will depend on the investments and they are always disclosed.

 

In this compensation model, the planner will earn more as your wealth grows under their umbrella, so there is additional motivation to see you succeed. There are also commissions from the sale of life insurance plans etc., and those commissions will always be disclosed to you. 

 

And remember, if you are a client at a firm like IG, you get all the financial planning services included. You don’t have to pay extra for this.

 

There is much more transparency today with fees than there was years ago and this should be addressed right up front, to ensure that you feel value from the service being provided and that the planner has a good basis for going forward with you

 

Where should women start if they want to change their advisor and start over with a new one? 

 

There is an ethical approach to this. If you wanted to move to IG for example, the request is handled by IG Wealth Management on your behalf and without embarrassment to either planner, and so that the client doesn’t have to handle it.

 

A preliminary analysis with no obligation is often provided by any new advisor, and in that scenario, I would want to know from any new client about details such as investment suitability for your life situation, how much service you have/haven’t received, areas of neglect that could impact your financial security etc.

 

Keep in mind that if you decide that you want to change, then you may be charged an exit fee from your existing financial institution. At IG, we can apply to head office to cover your exit fee from the planner’s own revenues but it has to be approved to avoid the appearance of trying to “buy your business.”

 

How can separation or divorce affect women’s ability to apply or qualify for a mortgage? What do we need to know to prepare? 

 

The best way to know if you’ll qualify for a mortgage on your own is to make an appointment to talk with a mortgage planning specialist.

 

That being said, there are some general things you can consider.

 

When you are looking to qualify for a mortgage, it’s based on ratios: your income relative to the cost of the mortgage itself and property tax. And then any other debts you might have. 

 

If you are going from a two household income down to just one, yes, it can make it harder to qualify with these ratios. And with the Bank of Canada, there are some stress tests involved. You often have to qualify at a higher rate as a single income earner than you would have with two incomes. 

 

Every lender is different, but this ratio is usually factored in. 

 

And remember, with respect to income, any child or spousal support will be added to or subtracted from your income when calculating ratios (depending on whether you are paying the support or receiving it). So that’s good to keep in mind.

 

One thing you can consider is having someone co-sign a loan or mortgage application for you. 

 

What if neither of us can qualify for a mortgage on our own but we want to keep our properties. Can separated couples both stay on as is with their joint mortgages?

 

A lender won’t be too concerned about who is on the mortgage title and the relationship between them, and much more interested in what the income and debt loads are for each of you.

 

It’s more of a legal question really, to figure out if it’s a good idea. Here again, if it’s not a good legal idea, maybe it will work better for you to have a family member co-sign an application for you.

 

It’s worth noting that lenders are spooked sometimes by separation because they don’t like uncertainty. So having a signed separation agreement in hand can help you to show them where the money is coming from regularly, especially with regards to child or spousal support. Your agreement shows a lender that this part of your income is contractually guaranteed.

 

What is the best option for any money a person might get in a separation or divorce via equalization etc.: should they invest it or pay off debt? 

 

This is a common question in any scenario with found money, not just with divroce, but any time you find yourself with a surplus of found money.

 

With equalization however, sometimes, it is the registration of accounts that is important to consider. For example, if equalization payments are received as RRSPs instead of cash then it’s not generally recommended to redeem RRSPs to pay off debt because of the tax you’ll have to pay to access those funds.

 

But if the money being transferred to you is tax-free or not locked in, then the decision to invest or pay down debt becomes more personal and about your circumstances and feelings about money. 

 

We would ask first, do you have an adequate emergency fund? So you can pay your living costs for a few months if you lost your income etc.?

 

We would look at the interest rate on the debt and ask you if the payments are manageable? 

 

And from there it is really an emotional vs. mathematical decision. Do you hate debt? Or can you handle a little when you know you are making more in interest? Sometimes the math isn’t compelling enough to help you sleep at night. 

 

A planner can help communicate the advantages of one strategy over another so you can make an informed decision. Sometimes having a loan makes good money sense but having the debt causes you stress. A planner can talk it through with you.

 

What happens to my kids' RESPs after the divorce? What are the options for dealing with these kinds of joint investments we might want to continue?

 

There are lots of options available to you. But one thing to note is that no matter what, you just want to be able to track it. Keep track of your personal contributions.

 

The money in an RESP actually belongs to the contributors (sometimes called subscribers) and not the child, so if you and your ex both contributed, you both own it.

 

So you can keep a joint RESP and continue to contribute, and your planner can help coordinate this and help track your contributions.

 

You could also keep the joint RESP as is but stop contributing to it. And then each parent opens up new ones that you each own to move forward with.

 

You can also sever the original RESP, and then split that into two new accounts.

 

Just remember that joint investments make it a bit harder to track contributions of each person. 

 

And, remember that you can have any number of RESPs. You are only limited by how much matching grant money you can get.

 

What should women do if they stopped contributing to their retirement savings (like RRSPs) during marriage and have no pension? What do they prioritize when income is limited? How do we begin building up retirement savings when money is tight?

 

If you are starting over and rebuilding wealth, it’s all new, so we start from scratch and look at your goals and objectives. 

 

Then we have a look to see if you have the funds to satisfy those goals. For example, if you don’t have sufficient cash flow for retirement and also to fix the roof, then you have to talk to your planner about what compromises you can make to reach your goals and how we can reset them so your plan works best for you.

 

Goals and objectives are always what we discuss first, for the short-, mid- and long-term.

 

Then we look at investment strategies to satisfy those goals, and then we look at the vehicles to support that strategy (TFSAs vs. RRSPs vs. investment property etc.)

 

For example, a common strategy is to save inside the TFSA and then strategically transfer to an RRSP at the end of the tax year to ensure tax-efficient contributions. Your TFSA is also then accessible without penalty if you need an emergency fund.

 

So it’s always goal-setting first, and then auditing goals with your abilities and realities, and then re-adjusting those goals with your planner. That’s the foundational piece to good planning.

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