Trite but true: these are unprecedented times; nerve-wracking, unchartered territory nobody living has ever experienced. Perhaps there are a few still living who can recall the 2nd World War. Canada, by and large, was not significantly impacted by this war. Furthermore, unlike World War II, we are dealing with an invisible foe—a virus for which there is no cure, not yet. COVID-19, this invisible enemy, has suddenly and dramatically changed every aspect of our lives—socially, personally, professionally—for the foreseeable future and possibly, to some degree or another, forever. At the beginning of this pandemic, perhaps many were enthralled by the novelty of these historic circumstances. The novelty, though, was fleeting. Quiet desperation has supplanted novelty. Now, we are left with a bleak landscape (both social and economic) fraught with uncertainty. Tensions rise, burgeoning anxiety and depression taking their toll. Life is becoming one big question mark: will this pandemic ever end; will life ever return to a semblance of normalcy; will I have a job; will I be able to provide for my family, etc.?
It does not behoove me to offer advice on how to cope during these harrowing times, for I am as angst-ridden as any of you. I can only tell you what works for me. I have adopted the mantra, “Keep Calm and Carry On” –a motivational slogan produced by the British government in 1939 in preparation for World War II. Panicking is counter-productive.
Platitudinous, perhaps, but there is much to be said about living one’s life ‘one day at a time’. People (myself included) expend much life force thinking about and regretting the past; or, focusing and worrying about the future. This is wasted energy. The past is the past and one cannot change it. The future will be what it will be. What is important is the here and now. Right now, are you safe? Do you have a place to sleep, food to eat, friends and loved ones with whom you can connect? Right here, right now, are you okay? If so, one can be grateful.
Gratitude: I try to be grateful for what I can. Just for instance, we all can be grateful that we live in a civilized society. We can be grateful for a government that is doing everything it can to mitigate the effects of this pandemic on our lives.
I try to get out of my own mind. How I do that is by seeing how I can help others. Helping others can amount to phone calls: checking on friends, for example, just to say ‘hi’ and ‘how are you doing’. For me, getting out of my angst-ridden mind is a blessing. If I am concerned about others and trying to help others, I think less about my own plight…
We are enduring historic times; an unprecedented era requiring everyone and every institution to adapt–and we are having to do so on the fly. Life as we knew it has changed; whether it returns to what it was is anybody’s guess. The legal profession is not immune. Although we lawyers are considered to be an ‘essential service’, the way we practice most certainly required change. Currently, lawyers should not be conducting in-person meetings. Meetings are now handled through Zoom (or other video-conferencing technologies).
Meetings are one thing; executing important documents—‘executing’ means signing, dating and witnessing—is another. Formerly, a sine qua non of executing documents: the lawyer, and possibly a second person, needed to be physically present to be witnesses. Obviously, one is throwing caution to the wind during this pandemic era meeting with clients to execute documents. The law (in ‘Darwinian’ fashion) has adapted and done so very quickly.
The ‘powers-that-be’ have passed legislation allowing for the signing of important legal documents—such as wills and and powers of attorney–remotely. A testator can now sign off on his/her willl and powers of attorney by audio-visual communication technology. The witnesses, preferably the lawyer who created the will and a legal assistant, would watch via video conference as the testator signed. This process would have been unheard of before; but now it is acceptable. There are certain protocols to be followed, certain caveats of which to be aware. Your lawyer should be apprised of these protocols.
Once we have moved on from this harrowing COVID situation (and we will) documents will once again have to be executed ‘in-person’. This being said, I think audio-visual communication is here to stay in the legal profession. Many client meetings do not have to be held in person. Why would clients have to cart themselves off to the lawyer’s office, contending with traffic, parking, etc, if a Zoom meeting would suffice? For that matter, lawyers and clients can even prepare documents together through Zoom. Even when in-person meetings are again permissible, lawyers should offer their clients the option of a ‘virtual’ meeting (when appropriate to do so) as opposed to an in-person meeting…with all due respect and may it please the court.
It is not ‘business as usual’ with the courts. Courthouses throughout Ontario are closed. They are scheduled to open at the beginning of June; but the reopening is always subject to change, dependent on how our COVID-19 situation pans out.
Although the Courts are physically closed, judges are still hearing urgent family matters via either tele-conference or video conference. The keyword is ‘urgent’.
The Courts have defined urgency in the family law context:
Requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home;
Urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
Dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
In a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
Before a judge will hear your matter, a judge appointed to ‘triage’ cases will determine whether your case meets the high threshold for urgency. If it does, the case will be assigned to a different judge for a hearing (once again via teleconference or video conference). The materials presented to the judge are also changing. In a nutshell, your materials, provided via email attachment, need to be streamlined. We are experiencing history in the making. Individuals and institutions are having to adapt quickly and drastically to these unprecedented, historic times. The court system is no exception.
It is safe to say that the longer government-imposed strict restrictions remain in place, the greater the court system will open itself up to hearing more and more matters; the bar for finding urgency will lower. There is possibly a silver lining. The legal profession, including the courts, was mired in the 20th century, which I would opine is in large part responsible for the formidable backlog. The crisis with which we are contending has forced the ‘system’ to move into the 21st century. One can only hope that the courts and the legal profession will continue to use the technology at our disposal, post-COVID-19 era, to better promote the administration of justice in a timelier fashion.
It may not be ‘business as usual’ with the courts during these trying times, but judges are still hearing urgent matters. Although the urgency threshold is high, one issue being dealt with by the courts is the restriction on contact between a parent and a child.
During these troubled pandemic times, some parents have come to court attempting to limit or entirely stop access to the other parent. You would be mistaken presuming that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. The courts begin with certain presuppositions:
Children thrive best when they have as much contact as possible with both parents;
Particularly in these uncertain and harrowing times, children need stability, comfort and predictability in their routine. Despite current world events, this can be accomplished.
Stability, comfort and predictability entails maintaining the parenting arrangements that were in place prior to the COVID pandemic—as long as the safety of the children is not compromised in any way;
Prior court orders or agreements that set out the parenting arrangements for children should be adhered to even in these uncertain times, unless there are compelling reasons to change the previous arrangements.
If a parent brings an urgent matter to the court wishing to limit a child’s contact with the other parent during this pandemic, the parent must provide the court with specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols. The parent responding to such a motion must provide the court with specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to—e.g. social distancing, use of disinfectants, compliance with public safety directives, etc.. In short, the courts do not condone changes to established parenting arrangements solely because of the COVID-19 crisis, as long as the current parenting regime does not compromise the safety and wellbeing of the children. The removal of one parent from a child’s life must be exercised extremely cautiously. This being said, however, there is ‘zero tolerance’ for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
If two parents are having a parenting dispute during these disorienting and troubling times, they should not go to court lightly without strong reasons. More than ever, judges look to parents to find their own realistic solutions. Judges want to see if parents have made good faith efforts to communicate, to show mutual respect, and to come up with creative and realistic proposals, demonstrating both parental insight and COVID-19 awareness. Parents coming to court without first having genuinely attempting to work out solutions will be admonished.
For me, one of the hardest issues to deal with as a family lawyer is parental alienation. Parental alienation syndrome, a term coined in the mid 1980’s by child psychiatrist Dr. Richard A. Gardner, occurs when one parent attempts to turn the couple’s children against the other parent. A parent who is angry at the spouse or ex-spouse accomplishes this estrangement by painting a negative picture of the other parent via deprecating comments, blame and false accusations shared with the children. They will also do everything in their power to thwart the other parent’s parenting time.
Lawyers, judges, the courts, we are poorly equipped to deal with parental alienation: It is difficult to prove; if and when a finding of parental alienation is made by a court, the damage to the relationship between the children and estranged parent is irreparable. Or, the alienated parent, browbeaten and dispirited—and probably so frustrated at the legal system’s apparent impotence to address the problem and effect change—gives up.
If a court does find that one parent has alienated the children from the other parent, it has four available options:
Change custody of the children to the estranged parent;
Provide a transitional placement where the children are placed with a neutral party and arrange for therapy for them so that eventually they can be placed with the rejected parent;
Order therapy for the children, but leave them with the favored parent;
Do nothing at all—i.e. give the culpable parent a stern tongue lashing but leave the status quo unaltered.
Possibly, the court might order costs against the blameworthy parent, but cost awards are cold comfort for parents who have lost a relationship with the children they love and cherish; parents who realize they are now anathema to their children. Furthermore, the cost award might amount to no more than a slap on the wrist because a huge cost award might affect the primary parent’s ability to provide for the children.
A change of custody is very rare. The reason: often by the time a court has made a finding of parental alienation, the death knell has already tolled for the relationship. The judge might conclude that yes, the children have been alienated from the parent, but now forcing the children to see this parent could be traumatic for them, causing more harm than good.
So, what is to be done? If you want to salvage your relationship with your children and you are certain the alienating parent is not going to voluntarily stop his/her campaign to estrange, act with haste. The court system is flawed but it is the only recourse you have. Do not hesitate to bring an ‘Application’ in family court and possibly seek leave to bring an urgent motion[i]
I am not a proponent of litigation: I believe recourse to the courts should be a last resort; I am an advocate of mediation or the collaborative family law process. But trying to destroy the relationship between the other parent and the children is execrable behavior. Somebody who engages in such behavior is most likely not going to be reasonable. Mediation, therefore, will most likely be ineffective.
When a relationship breaks down, property and/or support issues come into play. When they do, you could very well be confronted with a document called a Financial Statement. Actually, there are two Financial Statements, Form 13.1 and Form 13.
Form 13.1 deals with both property and support claims; Form 13 deals solely with support claims. If you have to go to court to deal with property and/or support, you most certainly will have to fill out a Financial Statement. Even if you are choosing a more non-adversarial approach, such as mediation, your mediator will probably require both parties to fill out a Financial Statement. At first glance, these Financial Statements appear quite daunting. This memo, with a focus on the Form 13.1, is intended to help you tackle your Financial Statement. I will also address common errors made by people when preparing their Financial Statements.
There are two parts to a Financial Statement: the first part deals with income and expenses, which is relevant to the support issues; the second part deals with assets and debts, which is relevant to the property issues.
Part 1: Income
Employment Income: The majority of people are paid every two weeks. Part 1 of the Financial Statement asks for monthly employment income. A common error is to simply take your paystub and multiply the gross amount by 2.
Since there are a couple of months with more than four weeks in the year, this is not the right approach. If you are paid every two weeks, you should take your gross income on your paystub, multiply by 26 (52 weeks) and divide by 12. This will give you an accurate monthly amount. Self Employment Income: If you are self-employed, you are required to input your net monthly self-employment income. (You will see a space provided for the monthly amount before expenses – ie. your gross monthly income.) Investment Income: One needs to include investment income. You do not necessarily earn investment income on a monthly basis. You could refer to your income tax return from the previous year to determine how much investment income you made during the course of the year and divide this amount by 12 to obtain a monthly amount. Spousal Support: You need to include spousal support as income. You do not have to include child support. If you have a family lawyer, it is not necessary to calculate totals. Your lawyer should have nifty software (software which goes by the name of “DivorceMate”) which will do all of the calculations for you.
Part 2: Expenses Most People find the expenses part of the Financial Statement to be the most frustrating and time consuming of all. One must bear in mind that the expenses section is more an exercise in “guess-timation”. One need not sit up at the kitchen table until the wee hours of the morning, drinking pots of coffee, tallying up endless receipts in an effort to achieve 100% accuracy. Do not lose sleep over the expense part. If you are spending more than two hours on this section, you are probably going overboard. Automatic deductions from income: The same applies to automatic deductions as it does to gross income: if you are paid bi-weekly, you need to multiply your deductions by 26 and divide by 12 as opposed to merely multiply by 2.
There is a cap on both CPP and EI contributions. If you are a higher income earner, more than likely you will hit that cap. As such, your paystub might not accurately reflect monthly CPP and EI contributions. Do a Google search for maximum CPP and EI contributions for the year in question, take that amount and divide by 12.
Other Expenses: When looking at other expenses, you might very well find that some are inapplicable to you. Leave them blank. Many of the expenses one would hardly consider monthly expenses – for example, gifts, vacations, clothing, etc.
For these expenses, try to estimate what you would spend on an annual basis, take this amount and divide by 12 to get a monthly amount. Some expenses you know precisely what you pay on a monthly basis (for example, rent or mortgage). For most, however, you will have to estimate the monthly amount spent. It bears repeating: ‘guess-timate’, don’t give yourself grey hair endeavouring to be 100% accurate down to the last penny. If you have a monthly expense that is not shown in the Financial Statement, feel free to include it at the end of the expenses section.
Part 4: Assets In and Out of Ontario This is the section of the Financial Statement dealing with property. You will note there are three columns provided: one on the date of marriage, one for the valuation date, and today. Quite often, particularly after a long marriage, one cannot remember, nor does one have any documentation relating to assets or debts as of the date of marriage. If you have assets at the date of marriage, this works to your advantage as it lowers your net family property. If you want to rely on premarital deductions, however, you need to provide supporting documentation. The valuation date is your date of separation. You and your former spouse need to decide on a specific separation date, because when determining property division—i.e. who owes whom an equalization payment–we need two “snap shots” in time: the value of the assets minus the debts as of the date of marriage and these values as of the date of separation. Sometimes a disagreement arises as to the date of separation. It really should not matter much if the parties’ disagreement over the date concerns a few days or a few weeks. If, however, we are talking about a discrepancy of several months or even years, then the separation date issue could be significant since it could markedly change the values used for determining property division. If the parties cannot agree on a date of separation, the date might have to be determined by a Court.
General Household items and Vehicles:
A very common mistake is writing down and placing values on every stick of furniture in the house (e.g. the old RCA television, circa. 1980; the faux leather couch desecrated with scratch marks and urine stains over the years by Scruffy, the ancient household cat). This should not be done. One must keep in mind that we are looking for the market value of household goods. In other words, if you were to sell your second-hand household items on Kijiji, how much would you get for them? Generally speaking, second-hand furniture and appliances are worth very little in the grand scheme of things. Hopefully, the parting spouses can determine between themselves who keeps what. Requiring lawyers to add their two cents’ worth will invariably result in the parties spending more on legal fees than the items are worth. One should list motor vehicles, motorcycles and boats. Once again, we are looking for the resale value. Many people find an accurate resale value on the internet, more specifically a “black book” value.
Other special items:
In my opinion, for a “special item” to be listed, it should be worth at least $500.00 (resale value). If one owned a Steinway Grand Piano, a valuable coin collection, or original artwork for example, these should be listed. Such items might very well have to be appraised by a qualified person, as well. A special note about jewelry: Jewelry might be insured for a certain amount, but if you were to sell this jewelry, you certainly would not get this amount. What would you get for your gold necklace if you sold it? Go to a store that deals with buying and selling jewelry and find out.
Pets: I love animals. I have a dog who is the office mascot. I certainly do not consider my dog to be property; I consider him to be part of the family. Most people do not consider their household pets as property. Unfortunately, the law does. How do you put a value on a household pet? Your guess is as good as mine.
Part 4c: Bank Accounts, Savings, etc.
It bears repeating that one needs values on the precise date of marriage and the precise date of separation; on or around does not cut it. All bank accounts and investments, including RRSPs should be listed in this section. What is often overlooked are pensions. Pensions are considered property under the Ontario Family Law Act. Indeed, pensions often prove to be the most valuable piece of property along with the matrimonial home. We family lawyers are not qualified to value pensions. Pensions are valued by actuaries who provide a “family law value” for the pension for the period of the marriage. You might very well have joint accounts and investments with your spouse. For these jointly held assets, you should only list half the value on your Financial Statement (your spouse will also list half of this asset on his/her own Financial Statement).
Part 5: Debts and Other Liabilities
There are some often overlooked costs that should go in the debts and liabilities section. For instance, there should be notional tax taken off of any RRSPs you have listed in the assets section. Your RRSPs might have a certain value, but you will be taxed on your RRSPs once you begin drawing from them. The same goes for your pension. Another overlooked “liability” is notional disposition costs of the matrimonial home. It is common to deduct 5% for notional disposition costs on the matrimonial home since these are costs you will incur when you sell the home (i.e. real estate commission and legal fees associated with purchase and sale).
Part 6: Property and Debts on Date of Marriage If you have a family lawyer, this lawyer should have DivorceMate software–software which will automatically calculate your assets and debts as of the date of marriage from the figures previously provided in your Financial Statement. Remember that assets you owned as of the date of marriage work to your favour as they will lower your net family property.
Part 7: Excluded Property Excluded property is property that you acquire during the course of your marriage but is not included in your net family property. In other words, excluded property works to your advantage. Examples of excluded property are gifts from third parties (i.e. not from each other), an inheritance, life insurance proceeds, damages and settlements for personal injuries and property that you can trace to any of the above.
The matrimonial home is accorded special treatment under the Family Law Act. Stated succinctly, if you were to use what otherwise would be excluded property—such as an inheritance, for instance—and put it towards the matrimonial home (e.g. renovations, mortgage, home improvements/additions) you would lose the exclusion. This is not fair, but this is the law at this time.
Proposed Budget More often than not, I do not ask my clients to fill out the proposed budget section of the Financial Statement. There are occasions, however, when I do ask a client to fill out this section. If a client is potentially entitled to spousal support, then a proposed budget is probably in order.
In conclusion, filling out a Financial Statement is a pain in the neck, no doubt about it. But it is not rocket science, and it is often a required document. This memorandum is provided to give you a head start. If you have further questions, we encourage you to contact us so that we can be of further help.
If you have not already read my first instalment/blog on addictions, I encourage you to do so. In this blog, I talk more about the legal problems you will likely encounter if you are separating from your spouse, you have children, and you are in the throes of an addiction. Let’s be honest: if are struggling with a serious addiction, can you be certain you can be entirely trusted if the children are left solely in your care? If you answered “yes, I can be trusted”, you might be in ‘denial’ mode –a very common defense mechanism used by addicts to hide their addiction from themselves and others. If your estranged spouse were asked the same question, the response would most likely be, “No way!” And If a court was asked this question, the judge would also likely say ‘No’, particularly since Courts like to err on the side of caution when dealing with children. When faced with a parent who is abusing a substance–whether it be alcohol or another drug–a Court will probably order ‘supervised access’ until your spouse or the Court (or both) are reassured that you have acknowledged your problem and have sought treatment.
You might even find that your spouse is more restrictive when it comes to your access than is really necessary, using your disease (yes, addiction is a disease) against you. Unreasonable, even vindictive–perhaps; but not entirely surprising.. To paraphrase: “Hell hath no fury like a spouse scorned”. Indeed, you have ‘scorned’ your spouse and children: once the most important people in your life, you have replaced them with a new love–your substance, your poison of choice. .
Supervised access is not fun. First, it can be difficult to organize. Unless your spouse, or another family member approved by your spouse, is prepared to supervise visits, you might have to apply to the Supervised Access Program offered through Ottawa Family Services. The wait time for a spot at this centre can be months (yet another example of a lack of government funding for a crucial service). But if you have substance abuse issue, supervised access is what you are going to get, until you have taken demonstrable steps to address your problem and get well.
There are of course 12-step recovery programs such as AA (Alcoholics Anonymous) and NA (Narcotics Anonymous). These 12-step programs are not everybody’s cup of tea. Many get turned off, for example, by the focus on spirituality. This being said, however, many find comfort through the camaraderie found at these meetings. One meets many others suffering from the same affliction–people who can relate, people who can understand what you are going through. For those adamantly opposed to 12-step programs, there are many other resources and options available out there. Below I have included a comprehensive list of resources in or around the Ottawa area.
I would suggest that the best way to prove to your spouse and the courts your sincerity to recover is to enroll in a treatment program. I would make special mention of a treatment program close by in Merrickville: Newgate 180. They can be reached at 1-888-524-8333
Addiction counsellors can also be of great assistance in helping one get back on the right track, but they are few and far between in Ottawa. Two well respected addictions counsellors are Catherine MacDonald (613-868-9351) and Jeff Gullick 613-796-8411.
Be forewarned, treatment centers don’t come cheap. You can find treatment centers that are partially subsidized but the waiting period for a subsidized spot could take months—yet another example of inadequate government funding. :By the time a spot becomes available, you could have already died from your disease.
I find it most frustrating that the Ontario Government derives enormous ‘sin tax’ revenues from four main sources: tobacco taxes, beer and wine taxes, the retail activities of the Liquor Control Board (L.C.B.O.) and the revenues from the Ontario Lottery and Gaming Corporation (OLG) In 2016, these revenues surpassed $6 billion. Soon the government can add marijuana as another lucrative source of tax revenue. And yet, even though approximately 10% of the population struggle with some sort of addiction or another, the government–complicit in promoting potentially addictive products and activities and reaping huge profits for its efforts–appears to reinvest very little in education and treatment for problems it is in part responsible for creating.
But I digress.
Do not make the same mistake as so many others. Many feel that through sheer will power, blood, sweat and tears, they can fix their problem by themselves. If you have become seriously addicted to a substance, you will probably need some kind of professional help. It bears repeating: addiction is a disease; it has nothing to do with a lack of will power or moral fiber. There is no shame in asking for help.
You will have to be patient. The former spouse–or if you are fortunate to have salvaged your relationship, your current spouse–will need time to get over the hurt. You will have to regain your spouse’s trust, for no doubt you have lied time and time again in an effort to hide the extent of your problem. Be patient with the legal system, for it is slow, ponderous. Be patient with your children, as they too will need time to get to over the pain your addiction has caused them. Above all, be patient with yourself . As I said in my previous blog on addiction, your problem did not develop overnight, and the road to recovery takes time and is not always easy. The alternative, however, is living a nightmarish existence enslaved to a substance==a rapacious creditor who will leave you bereft of your family, your dignity, your money, your principles, your health and ultimately your life. Recovery is tough, but it is worth the fight.
As mentioned, I have included below addiction resources that can be found in Ottawa. If you have further questions about this topic, please do not hesitate to call me. I might be in a position to help.
Had I become a criminal lawyer, I would have expected to come across the issue of addiction regularly. The majority of crimes committed in our society are fueled by drugs, alcohol and/or mental health issues (addiction, for that matter, is a type of mental health issue). It never ceases to amaze me, however, how often as a family lawyer I encounter family constellations torn apart and lives ruined by addictions—primarily alcohol.
Booze is such an integral part of our society. One is continually bombarded by advertisements brainwashing us into believing alcohol is the panacea to all life’s woes. Self-actualization can only be achieved if you drink a certain type of scotch, wine, vodka, etc. Beer drinkers, rejoice: pick up a Budweiser, and your bacchanalian revelries will be further enhanced by a multitude of attractive scantily clad women vying for your affections.
For most of the population, a beer or two at the pub or on a hot day is great; a nice glass of wine or two at dinner (red for beef, white for fish, of course) complements a fine meal. But for many, alcohol can be destructive. For example, did you know that the number one cause of visits to emergency wards are alcohol related or that the second biggest cause of death (after tobacco) is related, directly or indirectly, to alcohol.
Since alcohol is so socially accepted, one tends to forget that it is a powerful drug. For those who are genetically predisposed to becoming addicted, it can become a deadly drug. And it creeps up on you insidiously. Keep in mind that alcohol is a depressant; it also causes anxiety in the long term. One of life’s big ironies is that so many people attempt to self-medicate their depression or anxiety with alcohol which only exacerbates the problems, which leads people to drink or use more—a vicious downward spiral. Denial is huge when it comes to addictions. People will not accept that they no longer control the substance, but that the substance controls them. Most people feel that through sheer will power, they can get on top of the problem. More often than not they are sadly mistaken. Addiction is a progressive disease and denial has led many people to the grave.
In my experience as a family lawyer, I would say that one out of ten relationships have fallen due to substance abuse. A very sad statistic.
If you feel that you might have or might be developing a substance abuse problem, ask yourself these questions:
Do you often go through your day preoccupied with thoughts about when you will be able to drink (or use whatever substance it is you use) again?
Has anybody ever commented on how much you drink or use? Has your spouse ever complained about how much you use?
Have you ever set yourself limits about how much you would imbibe on any given night and not kept to the self-imposed limit?
Do you feel your quality of life is negatively impacted by your use or that you could function better if you didn’t you use as much as you do?
Do you ever feel sick and tired of being sick and tired?
Have you ever been concerned that you might have a problem? (if the answer to this question is ‘yes’, you most likely have a problem.)
On a good note, there is help out there. If you have concerns and want more information, a good starting point would be the Ottawa Addictions Access and Referral Services: 613-241-5202.
There are also new prescription drugs on the market now that help curve cravings. On another good note, for those that do find themselves in the throes of this terrible disease, there is reason for hope. Recovery is a slow and at times difficult process, but it is possible with help. The rewards of a clean sober life far outweigh the high cost of low living. You will be a much happier person: self-loathing will dissipate; you will be more connected to your family and friends; you will find yourself leading a more constructive, fulfilling and meaningful life.
In a nutshell, Elder Law deals with protecting the rights of elderly people. Elder Law is a complex field dealing with many different statutes and regulations. Furthermore, there are potentially a plethora of situations wherein elderly people might feel their rights have been infringed and require protection. Just for example:
They are the victim of ‘elder abuse’ at the hands of either family members, friends or strangers. Abuse can be not only physical but psychological or financial in nature;
There has been a misuse of an elder’s power of attorney, or an elder has been unduly influenced or pressured to designate someone as a power of attorney;
There has been undue pressure or influence placed on an elder with respect to the elder’s will;
There is an issue as to the elder’s ‘capacity’ to create a will or powers of attorney;
An elder’s rights, as outlined in the Long-Term Care Homes Act, are being infringed by the care facility in which the elder resides.
Elder Law is a burgeoning field. This is not surprising given the demographics of our society. As our society ages, elder law issues—e.g. misuse of powers of attorney, undue influence with respect to wills and powers of attorney, long-term care arrangements, etc.—will proliferate. This area of law will also take on increased prominence as we as a society change our thinking about the elderly. As a society, we must think of the aged as an asset as opposed to a liability. We must respect and admire the wisdom that only life experience can bring. At the same time, we must think of old age—and as corollary, the infirmities often accompanying old age—in terms of a disability and accord to older people the same reasonable accommodations we do for other disabilities.
As explained elsewhere in my website, the value of the property of the marriage is supposed to be shared equally (the value of the property, not the actual property). But sometimes this just isn’t fair!
In an earlier blog, I explained how the matrimonial home is treated differently than other property. For example, Sarah owned a $300,000. house prior to the marriage which was then treated as the matrimonial home during the course of the marriage—i.e. the property was ‘ordinarily occupied’ by the parties’ and served as a family residence as of the date of separation. At the date of separation, the home was worth $350,000 (an increase in $50,000). The whole value of the home, however, would go on Sarah’s side of the ledger, not just the increase in the value of the home from the date of marriage to the date of separation. In other words, Sarah’s spouse is entitled to half the full value of the home. This doesn’t seem fair, does it?
The law recognizes that sometimes an even split of the marriage ‘spoils’ might not be fair. Section 5 (6) of the Family Law Act addresses this subject…..
Variation of share (6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).
So can Sarah be reassured that Section 5(6) will address the unfair result of having to share the value of her home 50-50?
Please note the word “UNCONSCIONABLE”. Unconscionable means really, really, really UNFAIR. The Courts have equated the term with “shocking”, much more than “mere unfairness, harshness or injustice”. The threshold one must cross in order to open the door to an unequal division is “exceptionally high”.
In other words, Section 5(6) will not necessarily come to the rescue of poor Sarah. Nor does it help in many cases where an equal division of net family property would appear demonstrably unfair.
Sarah should have invested in a marriage contract, one that protected her interest in the matrimonial home she brought into the marriage. I know, I know: the idea of entering into a formal contract is somewhat offensive to the sensibilities of one about to embark upon a supposedly enduring relationship, one based on true love, one of non-ending connubial bliss, lasting until death to we part yada yada yada…. Regrettably, many relationships (over 50%) do not end up that way.
Life is about change. People often change overtime. But people do not necessarily change in the same direction; they grow and change in divergent ways. Often, with the passage of time, these lovebirds, who once pledged eternal love, one day look across at each other over breakfast and wonder who that stranger is at the other end of the table. Sadly, it happens all the time. That’s why there are so many of those gosh-darned family lawyers—those custodians and overseers of broken hearts and shattered dreams—floating around.