In this, FLA means “Family Law Act”, MH means Matrimonial Home, SA means “Separation Agreement”, “mtg” means “mortgage”, NFP means “Net Family Property”, ENFP means the Equalization of the NFP, V date means the valuation or separation date, HELOC is a Home Equity Line of Credit and SS is “Spousal Support” (formerly called alimony or maintenance).
- What is ADR?
ANSWER: ADR stands for Alternate Dispute Resolution, which is any form of trying to resolve the issues other than litigating in court, usually it means negotiation, mediation, in the criminal context it is called “diversion”
2. What is difference between mediation and arbitration?
ANSWER: Mediation is a mixture of negotiation combined with active listening and bargaining and a bit of counseling. Arbitration is deciding, like a private court of judge. It is adjudication by someone who is not in a court, commission, tribunal agency or board.
- Is it better to negotiate an out of court settlement or to go to court and litigate?
ANSWER: Usually it is better to avoid court for three reasons: a) it is expensive to pay legal fees, b) is it a slow process, each court appearance is about three months apart and there can be many c) often the judges have not read the materials or are in a bad mood and are always pressed for time, so one’s efforts are sometimes wasted.
Mediation is cheaper, can be faster, and the mediator will become very familiar you’re your case. However if one or both parties will not participate sincerely, genuinely and candidly it is a complete waste of time and effort. In such cases litigation is necessary.
4.What is a pre-nup?
ANSWER: In Ontario it is called a marriage contract, costs at least $1000 but if carefully prepared by lawyers can save huge amounts of money when you split up.
5. Does one person have to move out to start a separation?
ANSWER: No, you can be “separated under the same roof”. Many people cannot afford to move out so they keep living in the same house or condominium but are considered separated.
6. So how does a court decide is a couple are separated if they are still at the same address? Is it based on having sexual intercourse?
ANSWER: the courts look at many factors including having sex, e.g. what are the sleeping arrangements, e.g. separate beds, the cooking or eating arrangements, the child care arrangements, the laundry arrangements the recreation and entertainment and socializing, whether vacations are joint or separate, affidavits from friends and relatives, whether people list themselves as married, single or separated on their income tax returns. No one of these factors is determinative, the courts take a holistic view.
7. What does “legally separated” mean?
ANSWER: Many lawyers say there is no such thing, but it means the couple are separated as defined in Qs 5 and 6 above, (some would argue for at least 12 months) have signed a Separation Agreement and filing tax returns as “separated” or “single”.
8. How much does a Separation Agreement cost?
ANSWER: you can buy one at a stationery store or some drug stores for about $20 but if there are children, financial assets, or real estate involved, or your each have incomes that differ by 15% or more , or it is a marriage of over two or three years, it is much better to hire a lawyer. Courts tend to treat the store bought ones as worthless, especially if lawyers have not reviewed them and signed them. The cost then varies with the complexity of your and your partners’ life in terms of children, finances, income, debts, length of marriage, matrimonial home payments and value etc. plus how much time the two lawyers spend drafting and negotiation back and forth. Count on a least $1,500 and in complex cases or when there is a lot of back and forth negotiation, double or even triple that. It is still much better than litigation. Preparing the first set of court documents cans cost up to $3500 to $4000 if your finances are complex and then your first conference at the court will cost you another $3500 to $4000 to prepare for and attend.