The Impact of Early Decisions

Take a simple separation. Your spouse moved out a few weeks ago. You have had passing contact with them; maybe you take some early steps try to split property or you arrange visits with the kids.

Out of the blue a stranger leaves a package. You read on, and get a sinking feeling in your stomach… they’re applying for a divorce, custody of the kids, exclusive possession of the family home…

At this point, maybe you feel betrayed, frustrated, depressed or confused. Maybe you even feel guilty, or ashamed. You want to do something. You read on.

You see that have 30 days to respond. You’re lost. You need help. What should you do?

Separating from a spouse is a turbulent and disorienting process. You probably don’t know who will care for your children, how you will pay your bills, or where you will end up living. Many writers have compared separation to a death in the family, and have likened the emotional experience of a divorce to the grieving process[3]. However, your behaviour in the months after separation can impact your life for years afterwards.

The weeks immediately following separation are often critical in most family disputes. This is usually the most emotional time, where the memory of the breakup is recent and painful. Serious problems can arise at this stage when people act without understanding of the full consequences of their actions.

While some early mistakes can be fixed, others can’t. Waiting to ask for child support can sometimes just mean a delay in getting paid. Attracting an early criminal charge or child abuse allegation, whether legitimate or not, can cripple your family court case for years afterwards. Similarly, failing to make arrangements to pay utilities, property taxes, or consumer debt or failing to close joint debit or credit accounts can quickly result in the depletion of your family’s property.

Negative consequences can even flow from actions which seem reasonable. By making child support payments directly towards a child’s expenses, or by making support payments in cash, you can end up having to pay child support twice for the same period. Having a stay-at-home spouse always take the children to doctor’s appointments and extracurricular activities may seem like it makes sense, but it can also provide a spouse with ammunition for a claim for primary residence with the Children and increased spousal support due to an inability to receive full-time employment.

In particular, allowing a spouse to remain in the matrimonial home uncontested after separation without a negotiated agreement can have serious consequences for you down the road. Early possession of the family home in particular can snowball into a significant advantage over the course of an action. If requested by a spouse in possession of the family home, an order for interim exclusive possession will usually be granted. That party will have a much stronger case in favour of an order for primary residence with the children, assuming that the children have lived at the matrimonial home. The child support order will follow the custody order, and even if an order for shared parenting is later acquired, the party in possession of the home is likely to receive a higher amount of support than he/she would otherwise[4].

When the outcome of an appearance can affect the rest of your life (as can occur in an Family Court motion), the consequences of an uninformed decision can be severe. If you have separated from your spouse, you need legal advice immediately to protect your rights.

Does any of this mean that your life is over if you have already made some of these mistakes?

No. You can always take steps to improve your legal standing. However, your early actions will still restrict both your range of reasonable outcomes and your chances of getting to a desired outcome.

If you suspect that you could be going through a separation, you need to seek legal advice now.  The longer you wait, the more that you risk serious harm to your case and your family. You may find that the cost of waiting far outweighs the cost of a legal consultation.

All consultations with a lawyer are privileged and confidential. The consulting lawyer cannot disclose the contents of this discussion with your spouse, nor can they represent your spouse from that point on. This is true whether or not you have retained them to represent you.

Don’t be discouraged by your preconceptions about lawyers or the legal system. A lawyer’s job is not to convinced you to get a divorce or to ‘take your spouse to the cleaners’ – it is to give advice based on your situation and your needs, to advocate on your behalf, and to prepare your legal case. I believe that most people who have separated from their spouse are not ‘out to get’ their spouse – they just want a fair outcome, that their matter is resolved in a timely manner, and to ensure that their children are healthy, safe, and secure.

There is no reason to wait to acquire legal advice, and every reason to act now.

You won’t regret it.

[1] New facts can be relevant to some legal questions in a civil context, such as where a claimant’s loss is ongoing, where the Court is hearing costs submissions, and with respect to mitigation of damages.
[2] The Court usually attaches the most significance to a party’s recent behaviour. If problems arise before the first motion or case conference date, a status quo can be created that can cripple a party’s chance of a favourable outcome. Pre-separation conduct is obviously relevant to the outcome of most cases. This is especially true of cases involving domestic violence, criminal charges, drug use, or abuse. Much of the time, however, allegations about pre-separation conduct can be mitigated by a party’s post-separation conduct.
[3] See, for example, Death Or Divorce: Which Is Worse?, or The Emotional Stages Of Divorce by Pauline H. Tesler, M.A., J.D., & Peggy Thompson, Ph.D. – Collaborative Divorce
[4] A majority of the Supreme Court of Canada ruled at paragraph 80 of Contino v. Leonelli-Contino, [2005] 3 SCR 217 that a spouse’s “reasonable expectation” of continued support is a relevant fact to consider in awarding a reduction in support due to a shared parenting arrangement. This ‘reasonable expectation’ would not exist without a prior order necessitating a reduction in support.

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