Welcome

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Welcome to the law office of Doctor Randal Montgomery.

My website URL is www.CanadaLawyer.ca

Some clients and interpreters call me Dr. Montgomery and others just call me Randal or Randy.  Feel free to call me Randy if you prefer.

You can check my profile on LinkedIn. Briefly,  I am a lawyer, member in good standing of the Law Society of Upper Canada (that means Ontario) and was called to the Ontario bar in 1989. The “doctor” is because I have a PhD. in social science, not a medical degree although I have worked for the Penetang mental hospital as a summer student,  for the Clarke Institute of Psychiatry (now called CAMH) as a research associate and for the Sick Childrens Hospital on research contract. I have taught social science courses and law at 8 colleges and universities in three countries, and been a research consultant to the Alberta Solicitor General, the Durham Regional government and the Law Society of  British Columbia, and have published research in criminology and other scientific journals. I have also been legal counsel to the Minister of Immigration at the Immigration Appeal court and have represented many clients at the Federal Court, and of course Ontario family courts.

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Vol II of Qs and As

  1. What is the V date that family lawyers keep talking about and is in the forms?

ANSWER: the date you separated (for longer than 90 days)

  1. What if we tried getting back together and it did not work and we re-separated?

ANSWER: Attempts to reconcile of up to 90 days do not affect the V date, but if you get back together for over 90 days then you have started a new relationship and there will be a new, later V date. Getting back together for over 90 days often  cancels the legal effect of any Separation agreement, except for any real property transfers, they can’t be undone. Under the Divorce Act subs. 8(3)(b)(ii) the required twelve months of separation will not be affected if you try to reconcile and re-co-habit for up to 90 days but if you get back together longer than that the one year clock starts all over again.

  1. On separation, should I cancel joint accounts, joint credit cards, joint Lines of Credit, joint debts?

ANSWER; Yes,  providing that does not result in a default on mortgage payments on the matrimonial home, or damage to home due to cancelled utilities, or deprivation of necessities to your spouse or children, or damage to your own or spouse’s credit rating. If you normally pay half or all of the mortgage, property taxes and house insurance and you move out, a court may insist that you keep paying so as not to jeopardize your spouse’s family law interest in the house, not to mention your own credit rating and your own interest in the house. If the mtg. is not paid the bank may eventually sell it under a Power of Sale. The good news is that if you have to pay to keep the house up plus rent accommodation for your self you may be able to get a court to order the person who is staying in the house to pay some or all of your rent, This is called Occupancy Rent. Note “may” not “will”. 

  1. I have heard about occupancy rent. Is it true that after I left the matrimonial home I can force my spouse who is still there to pay me what I have been spending on rent?

ANSWER: “No”, that is not how Occupancy Rent works, it is a rare remedy anyway. See Q 56 below.

  1. If I live with someone without marrying them, and then we separate, do we have to divide all our property and split the joint assets?

ANSWER: in Ontario, basically “No” but there are exceptions that can be argued, namely a Joint Family venture or a constructive Trust. Some lawyers give clients the impression that these exceptions are common and easy to get. They are not.

The answer is always “Yes” when it comes to the Canada Pension Plan. Either party can apply for what is called a CPP split and it counts years of co-habitation as well as years of marriage. The Canada Pension Plan (CPP) contributions you and your spouse or common-law partner made during the time you lived together can be equally divided after a divorce or separation. This is called credit splitting. Credits can be divided even if one spouse or common-law partner did not make contributions to the CPP. Credit splitting may help you qualify for benefits and can affect the amount of any current or future benefits under the CPP program for both you and your former spouse or common-law partner. Most lawyers do not know much about it as it is all done by the federal government and we cannot influence it and so we do not even include the CPP as an asset when we prepare your financial forms. Just go to http://www.esdc.gc.ca/en/cpp/credit_splitting.page and you will know as much as most divorce lawyers. I do know a CPP expert who is not a lawyer and who provides me with special advice regarding the CPP.

  1. How does Spousal Support (also called Maintenance or Alimony) work? How is it calculated?

ANSWER: In Ontario it is called Spousal Support. See sec. 15.2 of the Divorce Act and the long, complex guidelines online at

            http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/pdf/SSAG_eng.pdf

            The actual calculations use a special computer program that uses “iterations” that lawyers must buy. It is not something that a simple calculator can calculate.

  1. Where can I get an estimated figure for free without hiring a lawyer?

ANSWER: Online at www.mysupportcalculator.ca  but see below.

  1. So I can rely on those figures and count on the court awarding that amount?

ANSWER: absolutely not, it depends on several other factors including eligibility or entitlement to received support(often overlooked) and how carefully the user inputs data into the program. The free online program may not be accurate for complicated cases and it is best to have an experienced divorce lawyer do the calculations using the program on his or her own computer.

Answers to Frequently Asked Questions – Volume 1

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).

  1. 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.

  1. 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.