Things to consider before meeting with a family lawyer

By Inga Phillips

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Meeting with a family lawyer to discuss separation or divorce is a daunting experience, but there are steps you can take to reduce your anxiety and ensure that your first meeting with a lawyer is productive.

Separating from a spouse is a highly stressful life event. On the Holmes-Rahe stress scale, a tool developed by psychiatrists to measure stress, divorce is second only to the death of a spouse.

While it is important to address the emotional consequences of divorce, it is important to avoid getting bogged down by details and issues that are not relevant to settling your divorce.

In this column, I will provide guidance for what people considering separation and divorce should be thinking about to help prepare them for what lies ahead.

Educating yourself about the process and your options for settling the legal issues arising from the end of your relationship will help ensure that the experience is as stress-free as possible. We have included a list of resources on our website to help you get started.

Issues to settle after a relationship ends

When a marriage or common-law relationship ends, couples need to reach an agreement on several key issues, including:

• Responsibility regarding children
• Child and spousal support
• Division of assets and debts

Sometimes couples negotiate an agreement on their own and then hire lawyers to draft a formal separation agreement. Obtaining legal advice is always a prudent move; it helps to ensure that neither party is inadvertently waiving their legal rights and that the terms of the agreement are properly documented. It is important that you obtain legal advice before you start negotiations. Do not sign anything until you have an opportunity to speak to a lawyer and obtain legal advice.

What to expect

Before we meet with new clients at Hamilton Fabbro, we provide them with an intake form to collect basic information about their family, including the marriage or cohabitation date, ages of children, separation date, details about the marital home and other financial assets and debts.

Once you retain a family lawyer, you will need to provide more detailed information and documents related to your income, such as personal tax returns and financial statements for your company, mortgage particulars, bank statements, loan documents, RRSPs, pension plans and other relevant information.

Remember, in family law, decisions are based on evidence. So, for example, if you claim that you brought property into the relationship (called excluded property), the court will require you to provide documentation to prove it.

It is worth pointing out that it is not uncommon for spouses to disagree on the date of their separation, which has some bearing on how assets will be divided. For financial and other reasons, couples sometimes choose to remain in the same home, but it is advisable to have a paper trail that verifies the date, whether that is done via an email to the other spouse or in a letter from your lawyer.

Before leaving the family home

One of the most important aspects of resolving issues arising from the end of your common-law relationship or marriage is the exchange of financial disclosure between the parties. Financial disclosure involves spouses exchanging information about their finances, including savings, investments, debts, pensions and other assets. Settlement negotiations cannot proceed until both parties have fully disclosed information about their finances and you should be prepared to provide full financial information to your former spouse. Agreements that have been negotiated without adequate financial disclosure can be later set aside by the courts so it is in your best interests to be transparent with respect to your financial information, and your spouse will be expected to do the same.

Collecting financial documents can be challenging if one spouse moves out of the family home upon separation. If that is your intention, make sure you collect as many relevant documents as you can before you leave.

Legally, you have every right to be in the home if it is jointly owned, but whether you can count on that is a separate issue. Sometimes, people change the locks or make it otherwise impossible for the spouse who left to re-enter the home.

In an ideal world, couples would agree on as many issues as possible concerning their children and finances before one spouse leaves the family home.

Consider your children’s best interests

Divorce is a process that can take months or even years to finalize if parties cannot reach an agreement. While negotiation or settlement discussions are ongoing, couples should think about interim arrangements for their family, including:

• Child and spousal support
• Where the children will live and how much time they will spend with each parent
• Where each spouse will live
• How they will handle expenses or support themselves if they have been financially dependent on their spouse

When children are involved, it is crucial that separating spouses carve out a parenting arrangement as early as possible. It does not have to be formal, but you should have a written agreement that establishes what the status quo will be. I always advise clients not to leave the family home without having an agreement about the children — unless there is no option to do so.

Sometimes, one parent leaves the home and is at the mercy of the other parent as to when they will see their children. If your spouse insists that you only have one overnight visit each week with the children, and that arrangement goes on for months, the court may determine that it is unreasonable to disrupt the children’s schedule and may leave status quo in place until the final resolution of parenting issues. In other words, if your parenting arrangement is unsatisfactory, do not leave it unaddressed for too long. We strongly advise not to move out of the family home unless there are safety concerns until after you’ve spoken to a lawyer and have a written agreement or a court order that outlines interim parenting arrangements.

Options for resolving issues arising from the end of your relationship

In family law, couples have various avenues through which they can structure the financial and co-parenting aspects of their issues, including:

• Negotiation outside court with your spouse and your lawyers
• Mediation
• Arbitration
• Collaborative law
• Litigation

In March 2021, the federal government updated the Divorce Act. One significant change is the requirement for divorcing spouses to try and resolve their differences outside of court, wherever possible, through alternative dispute resolution.  This requirement has been in place in the Family Law Act since March 2013.

While litigation is sometimes necessary, it can also be expensive and emotionally overwhelming as it is a highly adversarial process. Settling through an out-of-court process such as mediation or collaborative law gives parties agency and ownership of the resulting settlement and is often more cost effective.

If you are facing a separation or divorce and would like to discuss your options, we would be glad to assist.