What happens to my pension when I separate?
Marc J. Coderre is an Orleans based family law (divorce) lawyer.
In Ontario, a pension is an asset. In the end, the value of a pension is considered in the division/equalization of the net family properties.
The pension has a value and the Family Law Act has established a clear method to properly value pensions. The pension is usually valued by a qualified actuary to determine what is referred to as the “the Family Law Value”.
This is a complex issue in Family Law. There are various methods of dealing with the division of pensions. In many instances, the pension is divided, if the pension legislation allows for that specific pension, at source meaning that the non-titled spouse will receive some form of lump-sum to be paid into a qualified, locked in investment.
To properly deal with a pension, the party requires the services of a lawyer and an actuary.
You can contact Marc J. Coderre, family and divorce lawyer based in Orleans and Beacon Hill, for advice on pensions and other assets.
Occupation rent
Occupation rent is compensation paid by the spouse who has exclusive possession of the matrimonial home to the other spouse who has left the home voluntarily or has been ordered to leave the matrimonial home by a court.
Occupation rent is not automatic.
The philosophy and the merits of the claim is based on economic logic.
If the spouse who is in the possession of the matrimonial home has low mortgage payments or no mortgage payments at all and the spouse who has left the home needs to pay rent, the logic would be as follows:
• I could be renting out my half of the home and, therefore, you need to pay me rent.
As a general rule, the courts will set off the “rent” against certain expenses connected to the matrimonial home such as the mortgage payments or the property taxes. Therefore, a court may analyse the situation as follows:
One party will pay occupation rent to the other party however, the party who is receiving occupation rent will pay to the spouse who is in the home a percentage of the mortgage and taxes.
As a rule, if there is are substantial mortgage payments, the courts will set-off the competing claims.
At other times, the spouse who has possession of the home will seek a contribution to the expenses for the matrimonial home from the spouse who is not in the home. In such cases, it is fair for a court to award occupation rent to the spouse who is not in the home. It is simply a reverse analysis.
Marc J. Coderre, family lawyer in Orleans, has successfully argued occupation rent for a client who was not in the home and who had voluntarily left the home and where the wife was living in a mortgage-free home while the husband had to find rental accommodations for approximately 20 months following the separation. In that case, the Judge awarded the non-occupying husband $800 per month for 20 months.
Occupation rent needs to be properly raised in pleadings (court documents).
You can contact Marc J. Coderre, family and divorce lawyer based in Orleans and Beacon Hill, for advice.
Financial disclosure
Marc J. Coderre – Orleans family/divorce lawyer
When there is a dissolution of a relationship or a marriage there are usually financial issues that relate to support and property that need to be addressed and resolved.
There is no greater obligation on spousal to properly disclose their assets and income in such a case.
Many Orders for contempt against parties are as a result of a party’s failure to properly disclose his/her financial circumstances as mandated by Rule 13 of the Family Law Rules. That rule clarifies the obligation of parties to properly disclose their financial situation.
Many clients do not understand that the court, the lawyers and the parties are entitled to full disclosure regarding financial circumstances.
Furthermore, Rule 13.1 requires all parties to update their financial situation, basically, before every court hearing.
Repeated and frequent motions for disclosure are often necessary although should not be. The Courts no longer tolerate nondisclosure.
The Family Law Rules allow a Court to strike a non-cooperating party’s pleadings if he/she does not properly disclose.
Marc J Coderre (Orleans base family and divorce lawyer) has 29 years of experience in family law and court work. I totally understand the significant disclosure requirements imposed by the Family Law Rules.
A party will enhance his/her credibility by properly divulging all required information to ensure that a case is dealt with fairly and appropriately.
Marc J Coderre, family lawyer, has the experience to guide parties in difficult times. The focus is always the resolution of family issues.
Call Marc J Coderre, family lawyer, based in Orleans and Beacon Hill for advice and guidance (613-824-1542).
Costs
Marc J. Coderre – Orleans family lawyer
Court costs is a financial penalty imposed by a Judge or a Master against the party who was not successful during a hearing in a matrimonial case at any point in time. The cost consequences may be imposed at various steps such as: a case conference, a Motion, a Trial etc.
Rule 24 of the Family Law Rules deals with costs. In short, the guiding principle is:
There is a presumption that a successful party is entitled to the costs of a motion or case.
Not long ago, it seems that Judges were reluctant to penalize family litigants with costs. However, recent judicial appointments have seen experienced family law lawyers appointed to the bench. Those Judges understand the complexities relating to family law and also understand that parties and their lawyer need to be mindful of Rule 2 which states:
The primary objective of the Family Law Rules is to enable the court to deal with cases justly. This means, to ensure that the procedure is fair to all parties, to save expenses and time, to deal with a case in ways that are appropriate to their importance and their complexity and to give appropriate court resources to a case while taking account of the need to give resources to other cases.
The court no longer hesitates to properly compensate a successful party particularly if the other party has been unreasonable. For example, parties may argue a Motion (a step before trial) to determine support issues. It is no longer unusual to have courts impose cost orders of more than $5000 on the unsuccessful party.
Marc J Coderre (Orleans base family and divorce lawyer) has 29 years of experience in family law and court work. In my view, the Judges have, in the past 6 years or so, been properly and rigorously applying Rule 24 with the result that cost awards are now in line with what is seen in civil litigation.
In other words, the successful party on a Motion or at Trial should receive compensation.
The client needs to understand that costs are not necessarily equal to your full lawyer bill. It is a form of compensation and there are many factors that are considered by a judicial officer in awarding costs.
In summary, the spouses, should approach the dissolution of a marriage or of a relationship by following the law and rules and exploring all settlement options before taking a step which will require judicial determination.
This is not to say that a person should not litigate. To the contrary, issuing a divorce application or a court application will ensure case management and supervision and focus the parties on the settlement of their issues.
Marc J Coderre, family lawyer, has the experience to guide parties in difficult times. The focus is always the resolution of family issues.
Call Marc J Coderre, family lawyer, based in Orleans and Beacon Hill for advice and guidance (613-824-1542).
Income and spousal or child support
In family law, the concept of income is extremely important when addressing the issue of support whether we are talking about spousal support or child support.
There is this misconception that one’s income is defined by line 150 of a tax return. For a self-employed individual or a person earning money via investments or corporations generally, the last factor in determining that person’s income is his or her tax return.
This concept is well known to Judges and the experienced family lawyers. Marc J. Coderre, family lawyer based in Orleans, has 29 years of experience with such issues and can provide valuable advice on this subject.
In summary, and for a self-employed individual or an individual earning money through a corporation, the courts and the lawyers will carefully review the financial statements and the tax returns to determine whether or not line 150 of the tax returns fairly reflects all of the income available to him/her.
The law also specifically provides that the Court can add back to a person’s income personal expenses claimed to reduce corporate income or self-employment income.
The point is to consult a lawyer with experience in this field to properly understand the issue of income and support obligations.
Marc J. Coderre (family lawyer based in Orleans and Beacon Hill) offers a free 30-minute initial consultation in family matters.
The matrimonial home
The matrimonial home
In Ontario, the general philosophy of the Family Law Act, with respect to property in the case of the marriage breakdown, is that the spouses will share the increase in the value of their combined property during the years of marriage. Obviously, this statement is a simplification. However, this is the approach found that section 4 of the Family Law Act.
Therefore, a spouse is entitled to a deduction for the net value of his/her property on the date of marriage. However, this does not apply to a matrimonial home and the family lawyers generally agree that this is due to a legislative mistake.
Therefore, if a spouse owns a home on the date of marriage which still exists on the date of separation, that spouse cannot claim a deduction for the net value of the equity in that home as of the date of marriage. However, if that home was sold during the marriage, that spouse can claim a deduction for its net value. This is nonsensical however; it is “the law”.
Let us look at this from another vantage point. Two (2) friends get married on the same day. Friend 1 has $100,000 in the bank whereas Friend 2 has $100,000 in built up equity in a home.
Ten years later, the 2 friends separate on the same day. Friend 2 still has his home which was used as a family residence during the marriage.
Result
Friend 1 “gets” a deduction for $100,000 whether or not that $100,000 still exists on the date of separation whereas Friend 2 cannot deduct the $100,000 in equity that existed on the date of marriage. This makes no sense.
To properly protect yourself in such a case, contact Marc J Coderre (family lawyer Orleans/Ottawa) to discuss the possibility of entering into a marriage contract.
Marc J Coderre – Orleans, Ontario family lawyer
