Canadian Semi-Amicable Divorce
January 13, 2016 2:34 PM   Subscribe

My friend ("J") lives in Toronto. She was recently surprised by her husband ("R") moving out and filing for divorce. She has need of guidance/support from knowledgeable people. Level of difficulty: she hasn't had a FT job in around 13 years, and their two middle-school age kids have autism (one low-mid functioning.)

J has already done internet research - she's looking for referrals, personal anecdotes, and stuff that's not obvious.

The most important thing she wants to know is whether or not she needs a lawyer, how/where to get a good one, and whether mediation is something she should be aiming for.

Details
J has essentially zero resources, so everything would need to be pro bono or inexpensive.

Right now J doesn't have a drivers license and is depending on rides from R and the public transportation system.

They have a mortgage. J and the kids are in the house; R is in an apartment nearby.

J is the full-time caregiver, especially for their younger daughter who needs 24/7 care; for various reasons R is not capable of doing some of the things that J can (he's good with general father stuff, just not some of her needs.) Their daughter will probably need lifetime support; right now she's a public school student in an autism program with a 1-to-1 helper.

R has committed (from what I understand) to "paying for the divorce," which I think means he's paying filing fees and so on.
posted by SMPA to Law & Government (14 answers total)
 
I'm not a lawyer and I know nothing about divorce in Canada but I highly recommend she seeks a lawyer, even for an initial consultation so she knows where she stands.

She doesn't work, she has special needs children and her husband "surprised" her by moving out and filing for divorce, effectively blindsiding her. I'm concerned that she is extremely vulnerable. She's currently entirely dependant on R and he no longer has her best interests in mind.

I think "semi-amicable" is a little premature at present. It's going to be very expensive for him to continue to maintain the family home and the apartment and without his financial support her life may change dramatically. A good lawyer on her side will ensure that she gets what she deserves.

Also, until they are divorced she still has access to the shared marital resources, surely? If he pays for a lawyer (and I'm sure he has/will) it's out of "their" money until the divorce is final (I'm assuming, IANAL and TINLA) She needs to speak to a lawyer ASAP and to follow their instructions.
posted by kitten magic at 2:59 PM on January 13, 2016 [11 favorites]


Definitely sounds like a "lawyer up" situation - spousal support and child support definitely on the table.
posted by lizbunny at 3:08 PM on January 13, 2016 [1 favorite]


Yes, she needs a lawyer. And she needs to immediately consult the spousual and child support calculator for Ontario. A lawyer can help her get an interim support order.
posted by DarlingBri at 3:16 PM on January 13, 2016 [3 favorites]


YES, she needs a lawyer. Immediately. A good one. Tell her not to bargain hunt. Find the very best lawyer and she should not agree to "share" his lawyer. The fees will be paid out of joint resources. She will need to ask for a considerable amount of spousal and child support. She should not trust her soon to be ex to behave in an honorable manner when it comes to the care of her needs and those of the children. He's already been quite sneaky and self-concerned.
posted by quince at 3:54 PM on January 13, 2016 [5 favorites]


IANYL. Yup, lawyer. As soon as possible because there's a time limitation on the filing of certain things.

She should be getting substantial support because she's been a primary caregiver and the length of marriage was substantial.

Don't agree to anything in regards to child support/spousal support/custody without the advice of a lawyer.
posted by kinoeye at 3:55 PM on January 13, 2016 [1 favorite]


IANYL or your friend's lawyer. If it's only "semi-amicable" at this very early stage, I promise you that it won't be long before it becomes unamicable. And reading your question, I'm actually a bit surprised it's even semi-amicable if he surprised her by moving out and filing for divorce. That doesn't sound very amicable to me, not even semi-.

It's highly unlikely that she's going to find a pro bono lawyer to do a divorce, and looking for an inexpensive one is a false economy. I'm not sure how it works in Canada, but here in the US, the monied spouse often has to pay attorney's fees for the non-monied spouse. In any event, she shouldn't shoot herself in the foot by looking for a bargain.
posted by holborne at 4:01 PM on January 13, 2016 [3 favorites]


It's THEIR money, not HIS money, (at least in most US marriages. I may be assuming something I shouldn't about Canada but I don't believe so. My divorce attorney had to beat this into me....I'm glad she did. Worth every penny) Lawyer now and best of luck to her.
posted by pearlybob at 4:33 PM on January 13, 2016 [1 favorite]


OMG lawyer lawyer lawyer. Like yesterday. This is a complex situation where she needs experienced serious lawyer help.
posted by Kalmya at 4:54 PM on January 13, 2016 [5 favorites]


I'm not a lawyer and have only watched friends go through divorce, that said. Yes, she needs a lawyer. She needs one before she signs a separation agreement because what she agrees to in the separation agreement may haunt her going forward. This is super important.

Reiterating that it is not just what she has, it's what they have. I don't know when they bought their house or what they've done since but if it was longer than a couple of years ago and they didn't refinance she probably has equity there she could access too.

The friends I have who have gone the mediation route have taken a lot longer to come to agreements. You can have both a lawyer and a mediator.
posted by warriorqueen at 5:56 PM on January 13, 2016


Former Ontario constituency assistant here. To get cheap /free legal aid assistance in Ontario, she needs to call Legal Aid. It is a government funded family and criminal lawprogram for low income individuals. If eligible, they wil provide her with a certificate to receive free counsel and representation. She should call Legal Aid, with her most recent T1 general tax form. Legal Aid.
They will find her a lawyer; often, mediation is the first option. If unsuccessful, it proceeds to litigation.
If she needs income in the meantime, she can contact Ontario Works for income supports.Ontario Works. They may also assist in connecting her with home support services for the children.
posted by NorthernAutumn at 6:30 PM on January 13, 2016 [2 favorites]


From this document:

Q My husband has a good job and makes a good salary. I have
been at home for the last 10 years looking after our three
kids. I have no money for a lawyer. What can I do?

A You should call Legal Aid Ontario toll-free at 1-800-668-8258.
You may qualify for legal aid because you cannot afford to pay a
lawyer. If you will get money or property from your spouse in the
future, you may still be able to get legal aid now on the condition
that you will pay legal aid back when you get the money from
your spouse.
posted by foxjacket at 9:00 PM on January 13, 2016


She also needs to open her OWN bank account and squirrel away any money she can save there. A jar in her closet would be fine with loose change. Start working on getting her driving license, make copies of all financial and legal paperwork (Evernote and a camera phone is sufficient) and keep a budget/expense tracking.

He can be as generous as he likes about paying for the divorce, it's not about generosity, it's about what the law is and what works best for the kids - his generosity doesn't come into this, and neither does her kindness/selfishness.

If he feels guilty and generous, try to get him to pay in advance for 8-20 sessions for family counselling with a decent counsellor to do co-parenting counselling or if the kids need a couple of sessions. Better to get him to pay in advance for a chunk of therapy so she can deal with the emotional avalanche, than to have him pay for her divorce lawyer because a therapist doesn't care who paid the bill for the client, while a divorce lawyer does.
posted by dorothyisunderwood at 3:56 AM on January 14, 2016


I have divorced in Ontario and yes, please have her get a lawyer. I didn't have property or kids to worry about so did not get one, but to navigate the custody situation I highly recommend having a legal professional looking out for her interests. I can say that dealing with the paperwork at the courthouse in Toronto was not nearly as scary as I thought it was going to be. The people at the desks were kind and there is a place to print your paperwork if it needs revisions, etc.

Ontario is very much about an equal split, but what counts as equal is NOT clear in her situation. No moves without a lawyer, I'd say. Like, she shouldn't even say he can have the cordless power drill.
posted by wellred at 5:59 AM on January 14, 2016


All Ontario lawyers provide a free initial half hour consultation. She can try the Law Society Referral Service. Ideally she can find somebody good, who will be aggressive about filing for spousal support and poaching jointly owned assets to foot the legal bill. She may have, for example, equity in the home available to her. And lawyers definitely accept Visa/MC for retainers fees.

Legal Aid is very underfunded, and has a disturbingly large number of lawyers who take Legal Aid cases not because they are interested in social justice but because they are not skilled enough to have many clients who want to pay them out of pocket. She can interview as many of the Legal Aid lawyers as she likes, and she should do this, and dig through the list to try to find either the experienced and good ones who do have a social justice bent, or at least somebody who doesn't have many clients because s/he is fresh out of law school, wants a solo practice, but hasn't built up a clientele yet.

Legal Aid will give her a finite amount of legal help; if the divorce is complex, it may not cover it all, at which point she will be left to self-represent. It is not a very good system. Note the "If you will get money or property from your spouse in the future, you may still be able to get legal aid now on the condition that you will pay legal aid back when you get the money from your spouse" -- so there's a gamble there of getting a sub-par Legal Aid attorney and still having to pay for it instead of getting, well, Legal Aid. They also ask for liens on houses if homeowners wish to use Legal Aid, meaning you borrow money to access less than ideal legal services. Legal Aid attorneys do bill at a lower rate than most other attorneys, though, so there is some advantage to that -- however, I have talked to lawyers willing to bill the client directly at Legal Aid rates; there are not pro bono divorce attorneys out there, but there are ones sympathetic to people in your friend's situation. In Ottawa I have found everything from $4k retainer + $300/hr through to no retainer and $60/hr.

She wants somebody she finds at least reasonably pleasant; she will end up discussing many personal details of her married life with the lawyer. In theory they should all be objective professionals. In practice, one gets better service, and has a better time, when a friendly working relationship exists and one can crack jokes with one's lawyer.

She can apply on-line for welfare. She should do that ASAP; they will date it from the date of application. Even though it is a pittance, and even if it is not necessary for very long, something is better than nothing. She should call 211 for referrals for other services.

The term for her current situation is "displaced homemaker." There are not services for displaced homemakers in Ontario, but, sort of a useful term to know anyway.

I would not call this "semi-amicable" from the details here. There is no question that she needs a lawyer. I would probably not entertain mediation much unless, when presented with table amounts for child support (note that there is a "special and extraordinary expenses," I think it's called, that can be attached for exceptional needs, that will result in more child support than the table amounts, which the special needs child would definitely fall under) and reasonable spousal support and a 50/50 division of property, and he is quickly amenable to reasonable custody requests. Abruptly bailing and offering to pay "filing fees" does not sound like somebody doing his best to ensure that his ex-spouse and children will be appropriately taken care of. It should be obvious to him that she needs an attorney; his not offering to pay for that is a bit of a tell that his priority is merely getting out, not getting out ethically.

If R does not ask to see the children J might not want to invite him to see the children. Courts lean towards preserving the status quo, and if the status quo is that Dad moved out and displayed no interest in contacting the children for a period of time, that can be advantageous for her as far as custody goes.

Finally, the courts here are slow, and going through them is an enormous time suck and pretty stressful. Navigating this will be her part-time job for a while. You can pass the word around to friends that she will likely be in need of help with child care while dealing with lawyers and the courts, should people be wondering how they can help.
posted by kmennie at 8:02 AM on January 14, 2016 [2 favorites]


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