YOU THOUGHT IT WOULD NEVER HAPPEN TO YOU
By BRENDA R. MILLER, (former) Law Clerk, Family Law
Department
Your marriage was going to be different, it would last
forever. However, the facts confirm that you are not alone,
that approximately one half of all marriages end in divorce.
Add to that the dissolution of common law relationships
and you begin to realize that there are thousands of other
people who are in the same situation as you now find yourself.
No one wants to admit that they cannot resolve the issues
arising out of a marital breakdown with the person with
whom they have been closest to for any number of years,
but it may be that circumstances require you to speak with
a lawyer to learn your rights and obligations. This is especially
true whenever there is a division of property or the issue
of financial support for yourself or for any children. In
Ontario, the two most common pieces of legislation which
come into play during a marriage breakdown are the Family
Law Act and the Divorce Act. Support,
custody and property issues can be deal with under either
of these two Acts while the granting of a divorce can only
be done under the Divorce Act. Depending on
the issues, there may be other statutes which must also
be considered. These laws are not designed to place blame
on either party as to the reasons for the marriage breakdown.
Instead, the focus is turned from the emotional issues to
those of a more 'cut and dried nature'. That usually involves
deciding how the assets that have been acquired by the parties
during the course of their marriage are going to be divided
and whether or not spousal or child support is going to
be paid. These are issues that can be reduced down to something
that is easier for lawyers or the courts to deal with: dollars
and cents.
During the initial meeting with your lawyer, it will likely
be explained to you that there is an obligation imposed
on both parties for full and complete financial disclosure.
In the majority of cases, a Financial Statement will be
completed by both parties. You will likely be given a package
which will include a multi-paged questionnaire used to assist
in the preparation of the Financial Statement during the
early stages of your file. While it can be quite daunting,
with some degree of concentration on your part, the process
can be completed. The Financial Statement is an all encompassing
document that attempts to set out all of the information
needed to solve the issues. The first section of the Statement
will deal with income and expenses. Many people find it
a most difficult process to put together a Financial Statement
which deals with seemingly trivial items such as the amount
spent on groceries on a monthly basis at a time when they
are desperate to deal with the emotional consequences resulting
from the marriage breakdown. This is natural and expected.
However, your income and expense picture is important in
ensuring that an appropriate level of support is determined.
Sitting down with your most recent pay stub and your chequebook
or bank statement can help in completing this first section
of the Financial Statement. During the initial few weeks,
it would be useful to obtain and keep receipts for everything
on which money is spent. Next, set up an accordion file
folder at home using the various categories listed on the
Financial Statement such as groceries, meals outside the
home, entertainment, children's activities, gas and oil,
etc. Your receipts can then be filed in the appropriate
pocket, thereby helping you to identify the various ways
in which you spend your money. You may be surprised to learn
exactly where your money goes on a weekly or monthly basis.
The second part of your Financial Statement deals with your
assets and liabilities on three specific dates: the Date
of Marriage, Valuation Date (the date on which the separation
occurred) and the date on which the Financial Statement
is actually sworn. To assist you in the completion of this
part of the Financial Statement, it would be of great benefit
if you could gather as much information about your assets
and liabilities as possible at the outset while the information
is still readily available (almost all financial institutions
will charge service fees if they have to go digging through
past records to find account balances that are several months,
if not years, old).
Most individuals have simple assets and liabilities which
include a home, car, bank account(s), RRSP(s), mortgage,
credit cards. Much of the required information can be gathered
by you [this has the desired result of helping to reduce
your legal fees]. Financial institutions are able to produce
what is generally referred to as a Client Summary. The Client
Summary will include all bank accounts, credit cards, loans,
mortgages, RRSPs, or any other type of service the institution
is providing for you and the balances on deposit or owing
on the date on which the Summary is printed. This is a good
place to start. You should also contact any major department
stores to determine account balances and to take the additional
step of stopping the unwanted use of credit cards. Also,
take a look through the newspaper to find out what similar
models of your home or car are being sold for. An asset
such as Registered Pension Plan (a Plan acquired through
your place of employment into which your employer also makes
contributions) can be more difficult to value and might
involve the expense of a pension valuator if it is felt
the pension is a significant asset. This step should only
be taken when recommended by your lawyer.
Be prepared to provide you lawyer with full details of
your financial picture and gather together whatever documents
you can. The list below is by not meant to be exhaustive.
It is included simply to give you an idea of those types
of documents which can be of importance:
- Appraisals of real state, business interests and personal
property
- Credit Card statements
- Family Budgets (if any)
- Income Tax Returns for the previous three to five years
- Information on investments including account statements
- Information on pensions and RRSPs including account
statements, copies of plans
- Insurance records including policies, applications,
invoices and correspondence
- Lists of personal property
- Loan or Mortgage agreements for which you serve as guarantor
- Loan or Mortgage applications
- Personal and business bank statements or passbooks
- Real estate records including deeds, leases, property
tax assessments, reporting letters from purchases or sales
- Record of education expenses (for yourself or your children)
including tuition, room, board, books, contracts and loans
- Record of household expenses for utilities, maintenance,
improvements, repairs, household help and any other related
costs Record of who has Powers of Attorney
- Records relating to cash expenditures
- Resumes
- Safety deposit box records
- Travel records including itineraries, tickets, passports,
bills, receipts
- Wills
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The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
