When separating, it’s natural to want to focus on the end result (an agreement), particularly when you are anxious about what may happen – where will the children live? What will the property division look like?
The end result is important after all – these are among some of the larger decisions many people may make in their lives (both financially and in terms of parenting their children).
So it is even more important that we understand what steps lead us to that result and what factors influence it.
This is the financial information each spouse provides to the other. It includes simple things like tax returns, pay stubs or bank statements but sometimes can include more complex information like business or pension valuations.
In order to make sure this information is as accurate as possible, each party completes a ‘sworn Financial Statement’, which is a document sworn under oath setting out all of their income, expenses, assets and debts.
This Financial Statement is mandatory if your matter is in Family Court (and your case deals with financial issues), but should also be completed by both sides in any out-of-Court negotiation where support or property issues are involved.
Without full and complete financial disclosure by both parties, neither will be able to calculate with certainty what their obligations are for Child Support, Spousal Support or Equalization of Property.
Your lawyer can help you prepare your Financial Statement and let you know what information you need to collect.
It is important that each person have their own independent legal advice. That means each side having their own separate lawyer, acting only in that person’s interest. One lawyer cannot represent both sides in a family law dispute – it is a conflict of interest.
Legal advice is important at every stage of the family law process – from letting you know your rights and entitlements, to helping you choose a method of resolution, to negotiating an outcome and drafting a Separation Agreement, or representing your interests at Court if you can't reach agreement.
Sometimes having a lawyer means the difference between a poorly drafted, confusing agreement, versus one that can protect you and prevent disputes in the future.
Method of Resolution:
There are a number of different options to negotiate your Family Law matter, including Mediation, Arbitration, Collaborative Practice, negotiations between the lawyers or Family Court.
Not all of the processes are suited to all cases and all people. Which process to use can be a very significant decision, one your lawyer can help you with.
We will be writing a future article on the different methods of resolution and the pros and cons of each, as well as when each method may be suitable for your case.
Visualizing the process:
There are many different ways to visualize a family law negotiation, and below is a diagram with one possible interpretation. This shows Family Law as a machine with numerous, interconnected pieces.
Each gear rotates with other gears, and the outcome is affected by the interaction of all the gears.
If one gear breaks, is spinning the wrong way, or jams – that has an effect on the whole machine including the outcome.
This is also the case in Family Law. If the separating couple do not exchange financial disclosure, do not each have separate independent legal advice, or if they use an inappropriate method of resolution (or no method at all), that will have an effect on the kind of outcome they reach.
That can mean that one party gets a bad deal, is pressured by the other – or that the parties reach a result that is wrong or incomplete – and sometimes end up litigating the issues all over again later on.
Having all of the gears in place helps us get the process completed right the first time, and as quickly as possible.
The law takes these requirements so seriously that Section 56 of the Ontario Family Law Act actually allows the Court to set aside or review an agreement if there was insufficient financial disclosure, if a party did not understand the consequences of the agreement or was coerced into signing.
If you have questions about the family law process, please contact us.