I am a divorce lawyer by trade. I am married with two young children aged 2 and 7. I have personally represented hundreds of married and unmarried couples in family court.

I urge anyone contemplating a separation to carefully read this article, weigh the advice being given and consider all available options.

Married life can be extremely challenging. Today’s average couple work outside the home on a full time basis. They have young children, whom must be hauled to and from daycare, hockey, swimming and a number of other activities. The parents are attempting to “keep up with the Jones’” by upgrading their vehicles, their homes and taking vacations they may not be able to afford. In addition, they are expected to maximize their RRSPs, RESPs, TFSA accounts, pay down their debts, and retire on an island by the age of 55. In the face of all of these pressures, and expectations, the couple is expected to have a passionate love life, work out regularly, and abstain from consuming pleasurable foods. Why we place so many unreasonable expectations on ourselves as a society, is a subject matter for another discussion. That said, the pressures are real, and for many, are a significant contributing factor to their decision to reconsider their relationships with their partners.

The truth of the matter is that marital problems are often the symptom of other problems, be it financial difficulties, stress, health problems, challenging children, and so on. When feeling confused, or frustrated by life, human nature can make us project our frustrations on those who are closest to us. Those who feel safe. When we are children, our parents are our targets. When we become adults, our spouses often take on this undesirable role. In such circumstances, disagreements regarding division of household duties, or lack of intimacy are often amplified out of proportion.

My recommendation to any individual who is contemplating separation is to contact a marriage counselor, prior to deciding to retain legal counsel. A marriage counselor can assist you to identify the issues which are the true source of your dissatisfaction, and give you tools to address the said problems.

Marriage counselors charge between $75.00 and $105.00 per hour. Such services are often covered in full, or in part, by employee benefits plans. A few sessions can make an enormous difference.

Lawyers, on the other hand, charge between $200.00 to $550.00 per hour. If a case is taken to trial, legal fees can cost upwards of $2,500.00 per day of trial, per lawyer. The financial consequences of a divorce are but one factor. The emotional consequences of a separation on the spouses and the children are also tremendous.

Given these hard facts, unless the source of the marital problems places someone’s safety at risk, I recommend that all options to save the relationship be fully exhausted, including marriage counseling, prior to retaining legal counsel.

As an experienced divorce lawyer, I am often surprised by the behavior of family law litigants, prior to and during court proceedings.

Divorces and separations are very emotionally charged. During the relationship, many spouses were the victims of physical or verbal abuse, infidelity, or were emotionally neglected. Such circumstances can understandably cause the fostering of intense negative emotions towards one’s ex-spouse.

The challenge in such circumstances is to remain focussed on the importance of achieving a result which is in your best interest. To do so, the separating spouse must be able to succeed in having the court sympathize with his or her side of the dispute. Judges are human beings. Their sole objective is to render a judgement which is fair, and equitable, within the confines of the existing family law jurisprudence and legislation. Thus, behavior which appears to be spiteful, vengeful, angry, impulsive, unilateral, arbitrary, or generally unfair, will negatively affect one’s case.

Prior to the widespread use of e-mail communications, most disputes between ex-spouses occurred in the context of live conversations, or by telephone. It was more difficult for judges and lawyers to assess whose version of events was closest to the truth. Today, with the use of e-mail and text messages, it becomes much more difficult for parties to misrepresent what was said, or the manner in which it was said.

My advice to litigants is to be mindful that all of your e-mail messages, text messages, Facebook entries, Twitter entries, or other communications will be scrutinized by opposing counsel, your lawyer and the court. Thus, if your intention is to achieve a result which is in your best interest, keep the following rules in mind when communicating with your ex-spouse:

1. Tell the truth. Do not overstate facts which are advantageous to you, or understate facts which are not to your advantage. Avoid using hyperbole, exageration, absolutes (always, never). You will come across as being credible, and reasonable;
2. Do not use profanity, or derogatory terms. This seems like an obvious rule, however profanity contained in e-mails during litigation is frequent. It is often the result of an immediate response to an inflammatory e-mail, or telephone message. If you have just received a communication which makes your blood pressure rise, give yourself a day or two to respond;
3. Do not use large caps and avoid the use of exclamation points. This is the equivalent of raising your voice, or yelling;
4. Do not make accusatory comments, and avoid using the pronoun ‘you’. Instead, talk about how you felt about what occurred, or what was said (for example: Not being consulted with the choice of daycare made me feel less important as a parent…);
5. Do not give your ex-spouse orders, ultimatums or create artificial deadlines. This is a surefire way of ensuring that you do not get what you want. Instead, make suggestions, give options and ask when you can expect a response to your inquiry.

These simple rules will facilitate better communication with your ex-spouse, thereby reducing conflict and the need for lawyer intervention. If the matter escalates to litigation in court, or if it is already before the courts, cordial, fair, and reasonable conduct will make you come across as the more credible party. This will endear you you to your lawyer, opposing counsel (whether or not he or she will admit it), and most importantly the court, thereby increasing your chances of success in court.

Pursuant to section 4 of the Family Law Act, married parties’ Net Family Property (NFP) must be equalized upon the separation.  Without getting into the intricacies of the equalization of NFP process, the value of each party’s assets, which were accumulated during the marriage, are tabulated. Their respective debts are then deducted from the value of their property.  The resulting figure, after adjustments for exclusions, constitutes a party’s NFP. 

By way of example, if Bob accumulated $100,000.00 in Canada Savings Bonds (CSBs) during the marriage, and had $10,000.00 of debt, his NFP would be $90,000.00.  If his wife Lisa had  $50,000.00 in Guaranteed Investment Certificates (GICs), no other assets, and no debt on the date of separation, her NFP would be $50,000.00.  In this example, the difference between Bob and Lisa’s NFP $40,000.00.  Bob would therefore have to make an equalization payment to Lisa of half of the difference between their respective NFPs.  Bob would have to transfer $20,000.00 to Lisa as an equalization NFP payment. 

Equalization of NFP can become more complex when a party’s main asset is his or her federal government pension.  Unlike a GSB, GIC or Registered Retirement Savings Plan (RRSP), federal government pensions are not liquid.   

How do we give recipient of the equalization of NFP what he, or she, is entitled to when the main asset is a federal pension?   

In the example of Bob and Lisa’s separation, how would Bob have paid Lisa if his main asset was a $100,000.00 federal pension, instead of GICs? 

Unbeknown to many, the Pension Benefits Division Act (PBDA) addresses such problems. 

In situations of divorces, the PBDA authorizes the lump sum transfer of jp to 50% of the member’s pension, necessary to satisfy the equalization payment into the ex-spouse’s own pension plan, or locked-in-RRSP. 

Thus, in Bob and Lisa’s situation, Bob could have satisfied his equalization of NFP payment to Lisa by transferring $20,000.00 of his pension into Lisa’s locked-in-RRSP.  If Lisa is 55 years of age or older, she may be able to unlock up to 50% of her settlement by converting her locked-in-RRSP into a New Life Income Fund, and cashing it out.  Alternatively, Lisa could convert her RRSP into a RRIF, LIRA or other form of life annuity fund, and receive a regular income.  Lisa would be well advised to seek guidance from her lawyer or financial advisor in order to determine which options best suits her particular goals and needs. 

At the time of the writing of this article, this lump sum scheme is only possible if the plan member’s pension is a federal pension. Ontario’s PBA does not currently authorize lump sum transfers of pension benefits to ex-spouses.   

Bill 133 will soon authorize the lump sum transfer of up to 50% (or half) of provincial pensions in Ontario, for the purposes of lump sum equalizations of NFP.  Bill 133 received Royal Assent on May 14, 2009. The amendments to the PBA contained in Bill 133 will come into force on a day to be named by proclamation of the Lieutenant Governor. 

Please do not hesitate to contact me to discuss these issues further or to schedule a consultation.