What should people consider before filing for divorce?

Stanley J. Potter, a family lawyer in Toronto, answers: Couples should consider reconciliation if possible. Section 9 of the Divorce Act requires lawyers to discuss reconciliation and to advise of available counselling facilities. Should reconciliation not be appropriate, attempts should be made to negotiation and settle all outstanding issues. These issues should be considered:

• Custody — The best interest of the child should be paramount. Personal agendas and thoughts of revenge should be put aside. Issues involving the child’s residence and who makes decisions should be reviewed.
• Sole Custody — The child resides with one parent who makes all the important decisions, re: health, education and welfare.
• Joint Custody — The child resides with one parent, but the parents make decisions jointly.
• Shared/Co-Parenting — The child resides equally with both parents, (or as agreed) with both parents having equal input when decisions need to be made. The parents must be able to co-operate for this to work.
• Access — Access is the right of the child. It is in the best interest of the child to visit with and maintain a relationship with the non-custodial parent. Access is not affected by failure to pay child support. Access should be reviewed as the child grows. Weekends, mid-week, sharing holidays, vacation time, telephone and e-mail access should be considered.
• Child Support — Support is calculated pursuant to the Child Support Guidelines. The income of the payor spouse is required annually to adjust support. Each party is responsible to pay their proportionate share of Section 7 extra-ordinary expenses for such items as tutoring, daycare, camp, etc. (in addition to child support.)
• Spousal Support — Spousal Support is based on dependency and entitlement. The Divorce Act sets out factors, including length of marriage and role assumed by the spouses. Spousal Support Advisory Guidelines help calculate support payment and take into consideration the length of marriage, income of both spouses and the number of children involved. Usually stay-athome spouses, spouses under disabilities, or spouses with large income disparities are entitled to support.
• Equalization — Property acquired during marriage has to be divided (equalized). Valuation for the assets and liabilities are made as of the date of separation. Supporting statements should be obtained to substantiate all figures. Complete financial disclosure is essential for fair negotiations. An unequal equalization can be made in favour of one party if it would be unconscionable to divide property equally.

Stanley J Potter is a Toronto-based family lawyer offering legal services for divorce and separation, child custody and co-parenting applications, child support, spousal support and other family law matters.