Web site www.separatesmart.com Separating Smart Index For DVD
2 Separating Smart Index This Index is to let you know what matters are dealt with in the s DVD Separating Smart, and to give you an idea of where each matter is located on the DVD. The locations are shown in minutes and seconds (eg. 14:37). The intention is to let you know where to go on the DVD to reach a section you re interested in. The Frameworks The general framework of Separating Smart is to introduce a topic and then read various email questions to the lawyers interviewed and invite their comments. The questions read are set out in the following pages. The email questions used were compilations of e-mail messages sent to the over the years, or edited versions, to focus on a particular subject. The Lawyers Our many thanks go to the lawyers without whose contribution this DVD could not have been made: Michael Cochrane is a Toronto lawyer. He is the author of. "Surviving Your Divorce, A Guide to Canadian Family Law", "Surviving Your Parents' Divorce: A Guide For Young Canadians", and "For Better Or For Worse: The Canadian Guide to Marriage Contracts and Cohabitation Agreements" (all looks published by John Wiley & Sons). He is also the author of "Family Law in Ontario: A Practical Guide For Lawyers And Law Clerks" published by Canada Law Book. In addition to practicing law with Ricketts, Harris, Michael is a mediator. He may be reached at: Ricketts, Harris, Barristers and Solicitors 181 University Avenue, Suite 816 Toronto, Ontario, M5H 2X7 Phone: (416) 364-6211
3 Hilary Linton was raised in Tillsonburg Ontario, and is a partner with Chappell Bushell Stewart in Toronto. She teaches family law for the Law Society of Upper Canada's Bar Admission Course Family Law Section, and often writes and speaks about family law issues. She is a member of the Canadian Bar Association-Ontario, Family Law Section executive, and represented the Section for the Ontario task force on paralegal regulation. She is a long-time volunteer at Toronto community health centres. and is married with two young children. Hilary may be reached at: Chappell, Bushell, Stewart, Barristers and Solicitors 20 Queen Street West, Suite 3310 Toronto, Ontario, M5H 3R3 Phone: (416) 351-0005 Fax: (416) 351-0002 Victoria Smith is a partner at Simmons, da Silva & Sinton, in Brampton, Ontario. She practices exclusively family law, and is a principle of lmmediation lnc., which offers family and civil mediation and arbitration services. Victoria was called to the Bar in 1983 and has been practicing mediation since 1990. She is an Accredited Family Mediator under OAFM and a candidate to be certified as a Comprehensive Family Mediator with Family Mediation Canada. She has obtained extensive training in mediation in Canada and the United States including from FMC, Osgoode Hall Law School, the Law Society of Upper Canada, CDR Associates in Boulder, CO., and Roger Fisher of Harvard University. Victoria is co-chair of the Peel Halton Collaborative Family Law Association, a founding director and supervising mediator of Peel Family Mediation Services, which provides mediation in the Ontario Court of Justice in Peel Region, and past chair of the Peel Halton Dufferin Mediation Association. Victoria is a mediator on the Toronto Family Mediation roster, the Civil Mediation roster for the OMMP and the ADR project with the Law Society. She is also a member of the ADR and Family Law subsections of the CBAO and a member of Peel Law Association, FMC, OAFM, The Network and AMIO, Victoria now conducts mediation extensively in the areas of family and civil disputes and practices family law in a collaborative way. Victoria may be reached at: SIMMONS da SILVA SINTON, Barristers and Solicitors 200-201 County Court Blvd. Brampton, Ontario L6W 4L2 Phone: (905) 457-1660 Fax: (905) 457-5641
4 Jack Straitman is a sole practitioner and formerly a partner at Beaudoin & Pepper, Barristers and Solicitors in Toronto, Ontario. He is an instructor at the Law Society of Upper Canada of the Law Society of Upper Canada s Bar Admission Course Family Law Section, a mentor in the Family Law Program for Legal Aid and has been a Dispute Resolution officer of the Ontario Court (General Division) since the inception of the programme. Jack may be reached at: Jack M. Straitman, Barrister and Solicitor 800 439 University Avenue Toronto, Ontario, M5G 1Y8 Phone: (416) 598-4777 Fax: (416) 598-4316 Joel Miller is a sole practitioner in Toronto, Ontario. He has appeared on TV and radio and has written on family law matters. Joel has been a long time seminar leader at the Law Society of Upper Canada s Bar Admission Course Family Law Section, and has spoken as part of the Law Society s Continuing Legal Education Program. He has also presented papers at the last two National Family Law Programs in Whistler B.C. and St. John s, Nfld. He is also a volunteer presenter at the mandatory Family Information Sessions in Toronto. As well, he is the creator of Miller s, Canada s most comprehensive family law Internet site: www.familylawcentre.com. Joel can be reached at: Joel Miller Barrister and Solicitor Ricketts, Harris LLP 181 University Ave. Suite 816 Toronto, Ontario M5H 2X7 Phone: (416) 364-6211 Fax: (416) 364-1697
5 Table of Contents THE MAIN TOPICS DISCUSSED A. Introduction B. Preliminary Questions C. Custody D. Access E. Mobility F. Child Support G. Spousal Support H. Sam Sex Issues I. Finding Income J. Divorce K. Assessments/Mediation/Arbitration/Collaborative Family Law L. Conclusion
6 DVD. A. INTRODUCTION B. PRELIMINARY QUESTIONS 1. How will the fee be calculated? (07:05) 2. What do you suggest clients can do to help keep their costs down? (8:39) 3. Can people keep costs down by having both parties see you? (11:07) 4. Can you estimate how long this will all take? (12:14) 5. What questions should a client be asking of a lawyer before retaining him or her? (13:55) 6. What can be done when the other side is unreasonable? (16:00) 7. When should a client consider changing lawyers? (18:25) 8. Other preliminary comments(20:00) C. CUSTODY 1. INTRODUCTION (24:49) 2. WHAT S CUSTODY? (30:02) I ve heard of sole custody, joint custody, shared custody, split custody, and shared parenting. What do these mean?
7 3. SEPARATING THE KIDS & OTHER MYTHS (32:42) I m a father of three kids. The two oldest are boys 9 and 7. Our daughter is 4. My wife agrees the boys would be best with me but we are arguing about where our daughter should live. My wife says that she s a girl and should be with her mother. And also little kids are better off with their mother. I think she d be better off with me and her brothers. Is this worth going to court about? 4. WORKING PARENTS (34:47) My husband and I are talking about separating. We both think the kids should be with us. How do the courts decide where they ll be? We both work full time. 5. THREATS TO TAKE THE KIDS (36:30) My husband and I have decided to separate. He makes a lot more money than I, but doesn t want to pay anything more than child support. I want some support for myself. He says he ll claim custody of the kids unless I give up my claim for spousal support. Can he do this? I don t want to lose the children. 6. PREPARING FOR A CUSTODY CLAIM (38:22) I want to get out of our marriage but I don t think it s best for the kids to be left with their mother. She leaves most of the things involving them for me to look after, but she loves to show the world what a great Mom she is. What should I do to prepare for asking the court to let the kids live with me? What should I be doing now to build up my case? D. ACCESS 1. INTRODUCTION (40:50) 2. WHAT S ACCESS? (44:25) Before dealing with questions the FLC has received about access - describe what access means and what it involves. 3. CAN ACCESS CHANGE AS CIRCUMSTANCES CHANGE? (45:49) Our access agreement was made when the kids were little and I have them from Saturday at 10:00 a.m. until Sunday at 5:00 p.m. every two weeks. I want to see them more. When I asked about picking them up Friday after school or keeping them until Monday morning - or even until 8:00 p.m. on Sunday - their mother said
8 no. When I asked about seeing them overnight in the middle of the week, or even for dinner during the week, she said no. That doesn t seem fair. What can I do? 4. CAN I STOP ACCESS? (49:07) Every time the kids come home from a weekend with their father they re tired and irritable. They talk back to me and it takes several days to get them back into my routine - especially bedtime and the kinds of movies and TV I let them watch. He just plays with them and shows them a good time and buys them games and toys while I have to get their homework done and wake them in time for school Can I stop access? 5. GETTING A LETTER FROM THE KIDS (52:51) The kids tell me they d rather stay with me than their mother and how unhappy they are at her house, especially with her new boyfriend around all the time. I ve tried to talk about this with her but she says it isn t true or that the kids are just saying it to make me feel good. Should I get a letter from the kids? 6. DO I HAVE TO GIVE ACCESS WHEN THERE IS NO SUPPORT? (55:38) I had a baby three years ago. When my boyfriend found out I was pregnant he dropped me like a hot potato and disappeared. He never called to see how the baby or I were doing and never paid any support. Now he s turned up. He wants to pay child support but wants to see our son. I want him out of our life. The money would sure help a lot but I m prepared to do without it to keep him away. Can I tell him to get lost? 7. CAN ACCESS BE CUT BECAUSE OF ANOTHER WOMAN? (58:12) I ve been seeing our kids ever since my ex and I separated three years ago. Now I ve met a great woman but my ex doesn t like her or want her to be near the kids. Can she make that stick? 8. CAN A SECOND WIFE ENFORCE ACCESS? (1:00:53) My husband has a job with a lot of traveling. He has his children for access on alternating weeks but his ex-wife won t let them come if he s not here. I think its best for them to have a regular routine and I want to have them even though he may be away. What should I do? 9. WHAT S PAS? (1:03:07) I ve heard of PAS and think its happening to me. The kids are being poisoned against me and now say they don t want to come to visit with me. But they always warm up after a few hours and have a good time. I think their mother is turning them away from me. Isn t there a law against that?
9 10. WHAT TO DO IF ACCESS IS CANCELLED (1:10:50) Lately my time with the kids has been very difficult. Their mother keeps canceling the weekend or cutting it short. When they re with me she calls to check up on them and asks what we re doing. This is very frustrating. What can I do to get things back to smooth sailing? 11. STEP PARENT S ACCESS (1:12:44) My common-law wife and I are separating after 8 years together. I ve helped raise her 2 kids since they were 3 and 4. Can I get access? Does it make a difference that their biological father also has access with them? 12. GRANDPARENT S ACCESS (1:15:12) Our son and daughter-in-law are separating. She says we are on our son s side and can only see the kids when they re with him. Can t we have our own access time with them? DVD 2. E. MOBILITY 1. INTRODUCTION (00:16) 2. MOVING AWAY WITH THE KIDS (04:07) The kids have lived with me since our separation two years ago. I ve met a great guy who loves me and them and we want to get married. He lives in New York and my ex and I live in Buffalo. My ex has said he ll take the kids if I try to move away with them. Can he stop the kids and me from having a better life? F. CHILD SUPPORT 1. INTRODUCTION (8:22) 2. WHAT ARE THE CHILD SUPPORT GUIDELINES? (11:58)
10 3. PAYING LESS THAN WHAT THE GUIDELINES SAY (15:40) I earn $42,000 a year and my wife earns $38,000. When we separated, I took over paying the loan we had for a bunch of debts and the deposit on her car. I offered to pay her $300 per month for our 2 kids but she says I have to pay $576 a month. I can t afford it, pay our debts, and live too. Do I have to? 4. SPECIAL EXPENSES - THE ADD-ONS (18:12) My husband is paying the amount of child support the Guidelines say, but he won t help out for the extra expenses for the kids like pizza day at school, school trips, music lessons, and the hockey and soccer costs. Those things add up. Especially for hockey equipment. Shouldn t he pay for half of these? 5. PAYING CHILD SUPPORT IF ACCESS CUT OFF (21:15) I don t see our kids very much at all because their mother is really upset that I m living with another woman and am finally enjoying life. She has cut access to next to nothing. Do I still have to pay the full amount of child support if she won t let me see the kids? 6. CHILD SUPPORT FOR COMMON LAW WIFE S PREVIOUS KIDS (22:25) I live with my common-law wife and her three children from another father for almost 4 years. We were a family and they re nice kids. Since we broke up, I don t really see them. I just got a letter from a lawyer that I owe her child support. Is that true? It seems pretty unfair. 7. DOES MOTHER S INCOME AFFECT CHILD SUPPORT? (25:16) I ve been paying child support since we separated and my wife was earning only $17,000 working part-time. Now she s working full-time and has a great new job earning over $45,000. My income has gone from $37,000 to $42,000 in the same time. Shouldn t she be contributing more? Why doesn t my support payment go down? 8. POST-SECONDARY CHILD SUPPORT (28:00) Our son is now in university and his father has cut off all support. He pays for half of the tuition, books, and room and board at residence, but nothing else. I still keep a room for our son when he s home from school, pay for his clothes and other expenses. Can his father just pay for what he wants?
11 G. SPOUSAL SUPPORT 1. SOME BASIC QUESTIONS (30:50) a. Do you have to be married to get it? b. Who s entitled to it? c. What is it? d. Does it make a difference as to how long the couple have been together? e. How is it arrived at? Are there any guidelines? 2. INTRODUCTION 3. SPOUSAL SUPPORT ON TOP OF CHILD SUPPORT? (38:06) I worked since graduating high school and for the three years after we married until our first child was born. But I ve been at home with the kids for the past six years. The little one is just 3. Will I get spousal support on top of child support? 4. LIMITING THE LENGTH OF SPOUSAL SUPPORT (39:50) I m 37 and we ve been married for 15 years. I earn $27,000 a year and my husband earns about $75,000. I stayed home for about a year after each of our two children were born. He says he ll give me $5,000 a year for 3 years because I should be earning over $30,000 by then. He says I can support myself on $30,000 and he shouldn t have to support me anymore. Is he right? 5. STANDARD OF LIVING TEST (43:11) This is the second marriage for both of us. I ve kept my same job since we got married and am earning about $24,000 a year. He owes a small company and makes great money. At least $80,000 - $90,000 a year. We re separating and he doesn t want to pay any spousal support because he says I m no worse off than if we hadn t married at all. I ve gotten used to living in a nice house, have a new car, and going on vacations and can t afford this on my own. Is he right that since I didn t give up my job, I m not entitled to spousal support?
12 6. HOW LONG IS ENOUGH? (46:18) We were married for 7 years and have no children. My wife got sick about 5 years ago and now isn t able to work. I ve paid support for the 3 years since we separated. How much longer do I have to pay? 7. IMPUTING INCOME (47:50) Here are 2 questions that came up with the same basic problem: First: Second: My husband has deliberately stopped working overtime to lower his income just to pay lower support. Can he get away with that? My wife could easily get a good job now that our youngest is in Grade one but she insists on staying at home. Should I have to continue to pay her spousal support? Can a person be ordered to pay support based on more than a person is actually earning? 8. DOES REMARRIAGE END SPOUSAL SUPPORT?(51:55) When we separated, my wife swore never to have anything to do with men again. I got talked into paying her spousal support of $1,500 a month. At the time, we both knew that I was going to get married and my new wife had a job. It turns out my first wife is now remarried to a guy who is unemployed most of the year. Now that she has made a new life with that guy, shouldn t my spousal support be ended? H. SAME SEX ISSUES 1. INTRODUCTION (55:38) 2. CAN SAME SEX PARTNERS SUPPORT? (56:20) I ve been living with another woman for 42 years. She s told me she wants me to move out. She always earned more than me, paid for our vacations, and owns the apartment. Can I get any support? 3. SAME SEX SPECIAL CONCERNS (56:53) Are there special concerns with same-sex partners.
13 4. DOES HOMOSEXUALITY AFFECT ACCESS? (58:01) After struggling over what to do for quite a while, I ve told my wife that I m gay and will be moving out. She very hostile and told me I can t see our children. Why can t I? 5. DO SAME SEX PARTNER HAVE THE SAME RIGHTS? (59:38) Do same-sex partners who break up have the same rights as marred Couples? I. FINDING INCOME 1. INTRODUCTION (1:00:30) 2. FINDING UNDECLARED INCOME AND ASSETS (1:01:40) My ex is paying for child support. He has plenty of money for vacations and trips with the kids and expense payments for them. I know his income is more than he says. How do I prove it so I can receive what he should really be paying? J. DIVORCE 1. INTRODUCTION (1:05:45) 2. GROUNDS FOR DICORCE (1:06:24) What are the grounds for divorce? 3. WHAT A BREAKDOWN OF THE MARRIAGE? (1:06:35) What is a breakdown of the marriage? 4. DOSE CONDUCT COUNT? (1:08:06) What effect does the conduct of the parties have on getting a divorce? 5. GETTING A DIVORCE WHILE STILL LITIGATING (1:08:39) Can a person get a divorce even if the other issues haven t been resolved?
14 6. SETTLE FIRST OR DIVORCE FIRST? (1:09:25) Is it better to get the divorce and then try to settle the other things or to settle everything else first and then get the divorce? K. ASSESSMENTS/MEDIATION/ARBITRATION/ COLLABORATIVE FAMILY LAW 1. INTRODUCTION (01:10:00) 2. WHAT ARE ASSESSMENTS, MEDIATION. ETC.? (01:11:03) Many people have of, and asked about, Assessments, Mediation and Arbitration. What are each of these and when would one be used instead of another? 3. WILLAN ASSESSMENT WORK? (01:16:20) We re arguing over which of us should have the kids. I want to have the kids opinions heard. Will an assessment work? 4. OPEN AND CLOSED MEDIATION (01:17:20) I ve heard of open mediation and closed mediation. What s the difference between the two? 5. IS MEDIATION A GOOD IDEA? (01:21:20) My husband wants more access than we now have. He has suggested we go to mediation. Is this a good idea? I m afraid he ll talk the mediator into giving him more than I want him to receive. 6. COLLABORATIVE FAMILY LAW There s a new concept beginning to emerge across Canada called Collaborative Family Law. What is it? L. CONCLUSION (01:26:27)