Mandatory Early Family Dispute Resolution now in effect – and it’s hard to get an exemption

In March 2021 the rules about going to Court in a Family dispute changed. It is now harder to just go to Family Court to get a decision. You must attempt to settle things with your ex-spouse first and you must get a written certificate proving you tried. You can get the written certificate via collaborative law lawyers, via a mediator, via arbitrator, or via a parenting dispute co-ordinator. A Judge will not hear your application until you provide the written certificate that you attempted to settle out of court.

Practically speaking, most people’s circumstances lend themselves to mediation or collaborative law. Family Matters still offers a free two hour mediation via the Dispute Resolution Office. But if you also want the written certificate for Family Court purposes, you will have to pay for it. There are also family law lawyers who are family law mediators as well, and they don’t seem to be more expensive than the Dispute Resolution Office.

The only official exceptions to this new rule are where there has been:

1. Interpersonal Violence; and/or
2. A Restraining Order: and/or
3. An abducted child; and/or
4. Your ex won’t attend mediation or hire a collaborative lawyer; and/or
5. Extra-ordinary Circumstances;

In my experience, a Restraining Order will likely lead to an exemption. Interpersonal violence is a vague term and it hasn’t been defined yet to the best of my knowledge, so the Court may just deny an exemption request based on interpersonal violence. Realistically, if there are no criminal charges laid, it will be hard to get an exemption based on interpersonal violence.

After an abducted child is returned, you will still likely have to get the written certificate.

Myself and other lawyers have asked for exemptions based on extra-ordinary circumstances, but have not been successful. Even if both of us lawyers request the exemption, it still won’t be granted.

But everybody’s case is a little bit different. So call me or another family lawyer to see what your options are.

Family Property Disagreement? Try a free 2 hour Mediation from Family Matters.

Family Matters Saskatchewan offers a free 2 hour mediation, which is a good option for family property issues.   It may take a month or two to get in.   Any formal family property agreement will have to be written and signed by your lawyer afterwards.

Family Matters phone number is (844) 863-3408.   Their e-mail is familymatters@gov.sk.ca.   Their website is: https://www.saskatchewan.ca/residents/births-deaths-marriages-and-divorces/separation-or-divorce/family-matters-program

Free Child Support and Spousal Support Calculator

Every couple of years or so things slow down for a week or two and I have time to update this blog.

I offer a free 20 minute initial consultation but lots of people like to research what they can before calling.

WARNING: before reading the below and agreeing to ANYTHING give me or another family law lawyer a call.   Any agreement in writing and signed by you can be enforced by Saskatchewan Maintenance Enforcement Office.

If you are recently separated and wondering how much child support or spousal support you might have to pay there is a free website that can provide a rough guideline.   It is:

https://www.mysupportcalculator.ca/

or you can go directly to the child support guidelines at:

Click to access ska.pdf

But you should call a lawyer before agreeing or signing anything.   The issue of Custody, Child Residence, and Access is also important and the old days where the Mother usually got the kids are over.   Where the kids stay and for how long affects how much child support is paid, and to who.

Affidavit for Reduced Fee Transaction

I had given a client a real estate quote for transferring title from the spouse’s sole name into joint names.   I was surprised when the client said that another firm had quoted twice as much for Land Titles transfer fees.

When transferring title and one of the names on title remains the same, Land Titles will usually charge half the standard fee.   This happens often when parties seperate and one spouse comes off the title and the other remains.   Another example is when one person is on title and adds the spouse, for example to qualify for a higher mortgage amount on a refinance.

This does not apply to an application to transfer to surviving joint tenants because the fees for that are already greatly reduced.

David R. Barth

Risks of Giving Money to Your Child

Parents often want to help their children buy their first house.  Often they give their child a large amount of money towards the purchase.   The child then makes the regular monthly mortgage payments.

The problem is that if the child divorces, half the money you gave your child then goes to their ex-spouse.  This is not the parent’s usual intention.

The only way to avoid this problem is to transfer money to your child as a loan instead of a gift.  The terms and conditions of the loan will have to be in writing and signed by your child and their spouse.   The document should include the amount of the loan, the purpose of the loan, the interest rate if any, and the fact that the loan is due on demand, or on the event of your child’s separation from their spouse.

Separating spouses often claim that the money given to them by their parents was a loan, but without any supporting documents, it is almost impossible to prove.  Taking a few minutes to document the loan will save a lot of future grief.

You can forgive the loan to your child in your will, or at any other time you wish.

Keep in mind that some banks will require you to sign a document called a gift letter saying that the money your gave your child was a gift.  Experienced counsel will know to look for that gift letter.  A judge will then have to decide on the conflicting evidence whether or not the money was a loan or a gift.

David R. Barth

Farming and Divorce

Farming these days is big business.   It involves big expensive machines, lots of pricy farmland, and sometimes big profits.   Can you afford to give half of it away to your former spouse?

Under the Saskatchewan Family Property Act, farmers get to keep the property they had when married, but not the property’s increase in value during the course of the marriage.  The home quarter also gets split 50/50 even if owned prior to marriage.   In a typical long term farm marriage, most of the land was purchased after marriage, or increased greatly in value after marriage.   Which means a farmer getting divorced is going to be severely hurt financially.

What’s the solution?  If you are a farmer just getting married sign a pre-nuptial agreement BEFORE the marriage.  It will be the best investment you ever made.  If your proposed spouse refuses to sign, get a new spouse (by the way that’s relationship advice, not legal advice).

If you have been married for a long time?  I have no solution.   An interspousal agreement could be signed but your spouse won’t want to sign it and raising the issue could lead to divorce.  Her lawyer will almost certainly tell her not to sign it and the lawyer almost certainly won’t sign it either.   I wouldn’t (and haven’t).

If you are a long time farmer getting divorced from a long term spouse, bite the bullet, and try to get everything settled quickly.   Fighting in Court is only expensive, stressful, time consuming, and emotionally draining.  Neither party will be happy in the end.

Oh, and don’t buy a brand new Corvette.   That never helps.

And if you are thinking farmer means a man, think again.   Everything I am writing here applies to both women and men.  Farm women often have lots of farmland in thier own name, or inherit it from their deceased or former husbands.

This is generally what occurs after a farm divorce, but every farm divorce is a little different so you should contact a lawyer to get advice for your specific situation.

David R. Barth

Support and Passports

If you don’t pay your child or spousal support, the Maintenance Enforcement Office has the power to cancel your passport.  MEO does it by making a request to Passport Canada, who usually complies with the request.  Passport Canada then sends a letter to you requiring you to return the passport to an embassy or Passport Canada in a fixed period of time.   If your passport is almost expired, you will not be able to apply for a new one.

Losing your passport means – if you are working outside of Canada, you have to return to Canada.  That means you will probably lose your job.

I have had several clients with this problem and the only way to resolve it is to pay the support or return to Canada.  Once you pay, the Maintenance Enforcement Office can get your passport returned fairly quickly.

David R. Barth

Spousal Support and Revenue Canada

There is a difference between the way Revenue Canada treats child support and spousal support.  When you pay spousal support it is deducted from your income and added to the income of your ex-spouse.  Child support is not deducted from the payor’s income, nor added to the payee’s income.

Canada Revenue Agency does require that the payment be pursuant to an agreement or Court Order.   It is possible to have past spousal support included in this agreement.   So if you have been voluntarily paying spousal support, make sure you have the past support included in your agreement or Court Order.

An interesting twist is how Revenue Canada treats legal fees for spousal support.   If you are applying to get spousal support, a source of income, Revenue Canada allows you to deduct the legal fees as an expense on your taxes.   If you are fighting against paying spousal support, you cannot deduct the legal fees. Revenue Canada says it is not an expense incurred to gain income.

David R. Barth

Apply Promptly for Shared Parenting after Separation

As soon as parents seperate, the race is on the determine custody and access.   If the parents can agree on where the children will live, there is no problem.   However, if one parent wants the kids to live primarily with her for example, and won’t allow shared parenting, then the other parent must get into Court to request shared parenting as soon as possible.  The longer you wait, the greater the chance that the Court will want to uphold the existing situation.

That means there is little time for mediation or to hire a lawyer.   If the kids have been living with Mom for two months, have adapted to seeing Dad on the weekend, and they are doing fine in school, why would a Judge want to change that?  While Child Support Applications require 37 days notice, Custody and Access applications only require 14 days notice.

If you wait a month to get your first appointment with a lawyer or mediator, you have just wasted a lot of time.

If you wait until the other parent applies for child support before asking for shared parenting, you know the other lawyer will argue you just don’t want to pay child support.  I hear that all the time, and make the same argument myself.  Even if its not actively argued, its something that everyone will be assuming in the back of their head, includng the Judge.

Then when you finally get to Trial, the same thing will happen again, especially if the children are under 14.   The Trial Judge will look a bit deeper than on the first Court appliction, but the existing arrangement will have some influence on the Judge’s final decision.

David R. Barth

The Status Quo

When determining where the children will live after separation, the Court will look at “the status quo”.   The status quo is the children’s current living situation, and what it has been in the past month or two.   The parent where the children have been spending more than 60% of their time will be called the primary parent.

On interim applications the Court will want to ensure that the children have stability.   If the status quo is working for the children, especially young children, the Court will order the current primary parent to continue being the primary parent.

If an access parent keeps the children for more than several months without complaint from the former primary or shared parenting parent, then the status quo has effectively changed.   That is why it is important to promptly to apply to Court when the other parent refuses to return the children or unilaterally changes the children’s access schedule.  No excuses for failing to promptly apply are usually accepted, including not having enough money for a lawyer.   After several months, the Court will simply look at the new status quo and see if it is working.

After separation one parent will often say they have been the primary parent and the other parent only gets weekend access.   If the access parent doesn’t want that to continue, and wants shared parenting, then a prompt Court application is required.   Failing to do so for several months will lead to primary residence with one parent, instead of shared parenting.

David R. Barth