Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Closed Thread
 
Thread Tools
  #1  
Old 02-28-2008, 01:15 AM
jean jean is offline
Junior Member
 
Join Date: Feb 2008
Posts: 13
jean is on a distinguished road
Question difficult situation

I am currently separated from my spouse and I made the mistake of moving out from the home hoping for a reconciliation. After 5 months of separation it looks like we are heading for a divorce. I prepared two documents; one regarding the shared custody of our child based on 50/50 parental responsibility and another one regarding division of property. I am convinced that my W prepared her own version of the separation agreement. I really hope we will reach an agreement and get one final document.

Is there any difference between shared custody and joint custody?

Since I moved out I did not pay anything towards the mortgage since I became unemployed. I am going to calculate my share in the house as being the difference between the market value and the outstanding balance of the existing mortgage divided by two. From this I will subtract the mortgage she paid since our separation. Is this fair and correct? Since I will subtract the mortgage she paid by herself during the separation it matters what date we should use to evaluate the market value of the home? I don’t think the value of the home increased that much since the separation to make a big difference. If this is not correct, then how can one evaluate the value of the matrimonial home at the time of separation?

How are the property taxes handled in a separation agreement?

I am not asking for anything from my W except shared custody for our child and to release me from the mortgage. When actually she has to buy me out? Before or after the divorce? She disliked the idea of buying me out claiming she has no money.

The maternal home will be considered as the main residence for our child, however he will be spending half of the time with me (hopefully). Even the child custody is based on 50/50 parental responsibility and my W is making more money than me, I will pay child support as per the Guidelines published by the Government of Canada. The money will go directly into his RESP so that she cannot use them for her benefit. Can I claim our child as dependent when filling the tax return?

In the case I will accept a job offer to another country before the divorce is finalized is this going to affect the child custody? Obviously, the time spent together with the child will be affected, but how about major decisions? Can my W change the terms in the separation agreement if I am moving to another country?

We did not discuss the terms of the separation agreement yet but we agree to talk about this soon so I want to be prepared. We both agree we should not use lawyers for the divorce and try to agree on the separation terms. Anyway, I will submit the documents that I prepared to a L before discussing with my W. I am sure she did that already. However, none of the lawyers I contacted wanted to review the separation agreement w/o a retainer of at least $1000. Any suggestions/advices are welcome. Thanks.
  #2  
Old 02-28-2008, 09:11 AM
FL_Needs_To_Change's Avatar
FL_Needs_To_Change FL_Needs_To_Change is offline
Moderator
 
Join Date: Mar 2007
Location: Northern Ontario
Posts: 1,261
FL_Needs_To_Change has a spectacular aura aboutFL_Needs_To_Change has a spectacular aura about
Default

Quote:
Originally Posted by jean
Is there any difference between shared custody and joint custody?
In the late 1990's Lorne MacLean and other lawyers challenged gender stereotypes and began to seek shared custody: an expanded version of joint custody where the parties share equal decision making and EQUAL TIME with their children. Recent Court of Appeal authority has sanctioned a week on week off arrangement; we are moving towards a fairer distribution of parenting rights after separation.

Quote:
Originally Posted by jean
Since I moved out I did not pay anything towards the mortgage since I became unemployed. I am going to calculate my share in the house as being the difference between the market value and the outstanding balance of the existing mortgage divided by two. From this I will subtract the mortgage she paid since our separation. Is this fair and correct? Since I will subtract the mortgage she paid by herself during the separation it matters what date we should use to evaluate the market value of the home? I don’t think the value of the home increased that much since the separation to make a big difference. If this is not correct, then how can one evaluate the value of the matrimonial home at the time of separation?
I'm sure other members with experience can help with the issue of property splitting.

Quote:
Originally Posted by jean
Can I claim our child as dependent when filling the tax return??
I do not think so. I believe the "primary" residence parent is entitled to claim all expenses related to the child, however I think you need to revisit the issue of CS. If you have a lower income and the two of you share the custody 50/50, you may not owe CS but rather she may owe you until you become fully employed again. As CS is primarily to equalize the standard of living in both homes for the children. So if she is making more and living in the home, I would suspect she has a higher standard of living and would be responsible for CS. I'd look into that if I were you.

Quote:
Originally Posted by jean
In the case I will accept a job offer to another country before the divorce is finalized is this going to affect the child custody?
Oh yes! Once you move you will not have the ability to split time with the child without some serious traveling on the child’s part and the courts may not see that this is in the best interest of the child to be traveling so extensively. You may ask for extended periods of access to limit the travel times. As long as the physical custody of the child is 40% or more then the CS issue may not change except if your income changes. If you ultimately earn more than the wife, and if initially she was ordered to pay you because she made more, that may change to you paying her, and her getting the majority of time with the child.

Quote:
Originally Posted by jean
but how about major decisions? Can my W change the terms in the separation agreement if I am moving to another country?
This will remain split, as long as the two of you can agree and come to decisions without turmoil to the child’s best interests.

Hopefully others can help with material property issues and dates for setting the values. Best of luck.

FL
  #3  
Old 02-29-2008, 08:34 AM
robrjm robrjm is offline
Member
 
Join Date: Jan 2008
Posts: 32
robrjm is on a distinguished road
Default Property division

In order to determine the division of property you should follow the instruction of the "Rules of Family Law". In it you will find Form 13B: Net Family Property Equalization". There are two improtant dates - date of marriage and date of separation. You will determine the value of all assets on these dates and divide the difference in two. Changes in values after separation, payments on the mortgage and property taxes incurred after separation are not a factor.
  #4  
Old 03-16-2008, 06:35 PM
jean jean is offline
Junior Member
 
Join Date: Feb 2008
Posts: 13
jean is on a distinguished road
Default

Thanks to the guys who responded to my previous posts. I have another dilemma and I hope I could get a clarification. Since there is no separation agreement regarding the child custody in place for a couple heading for divorce, which is the best way to handle the filling the tax return; together or separately? Financially there will be some benefits if the couple files the tax returns separately. Filling the tax return separately and the spouse remaining in the maternal home (with higher income) claiming the child on his/her taxes for 2007 means that the child is dependent on this person and the one who moved out will be affected when the child custody will be raised?
  #5  
Old 03-17-2008, 07:08 AM
FL_Needs_To_Change's Avatar
FL_Needs_To_Change FL_Needs_To_Change is offline
Moderator
 
Join Date: Mar 2007
Location: Northern Ontario
Posts: 1,261
FL_Needs_To_Change has a spectacular aura aboutFL_Needs_To_Change has a spectacular aura about
Default

You can claim separated if you ceased to co-habitat prior to the 31st of December in the tax year claimed. If you can show you live separate and apart from your spouse you can claim single. There is a case where they still resided in the same home, and were allowed to claim separate, see this link.

http://www.morrowmarsh.ca/TT53MM.htm
  #6  
Old 03-17-2008, 08:46 AM
jean jean is offline
Junior Member
 
Join Date: Feb 2008
Posts: 13
jean is on a distinguished road
Default

Thanks for the reply.

My question was reffering to the fact that if the couple files separately and one spouse (the one remaining in the maternal home) claims the child on his/her tax return forms the other spouse will loose custody of the child in case of a divorce, since no separation agreement is in place yet. Any comments? Thanks again.
  #7  
Old 03-17-2008, 09:37 AM
FL_Needs_To_Change's Avatar
FL_Needs_To_Change FL_Needs_To_Change is offline
Moderator
 
Join Date: Mar 2007
Location: Northern Ontario
Posts: 1,261
FL_Needs_To_Change has a spectacular aura aboutFL_Needs_To_Change has a spectacular aura about
Default

Quote:
Originally Posted by jean
Thanks for the reply.

My question was reffering to the fact that if the couple files separately and one spouse (the one remaining in the maternal home) claims the child on his/her tax return forms the other spouse will loose custody of the child in case of a divorce, since no separation agreement is in place yet. Any comments? Thanks again.
I think you're asking if the parent living in the house claims the child on their tax return as a dependant, and in light of no separation agreement, would the parent not living in the home that has physical custody loose said custody if this was taken to court and CCRA records used?

I'm thinking that the answer is no.
The courts would rule relative to the status quo, IE where the child physically resided. Void an agreement/order it is presumed that both parents are in agreement to the status quo simply by allowing the arrangement to continue. If neither takes the issue to court to dispute it, then it is deemed to be acceptable and thus status quo takes precedence regardless of who claimed the child as a dependant on their tax forms.

In reality a parent can NOT claim a child as a dependant unless they reside with them full time, IE the parent with whom the child resides the most is. This is my understanding. CCRA's site explains who can and cannot claim a child(ren) as dependant(s), what circumstances deem the child a dependant and which parent can and cannot claim associated expenses.
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Extremely difficult situation naori Divorce & Family Law 2 05-07-2009 02:46 PM
best advice for this critical situation, please help! hope7 Common Law Issues 3 10-15-2008 06:30 AM
Unusual situation ANewLife Divorce & Family Law 2 08-07-2008 08:12 AM
difficult situation; need advice jean Common Law Issues 4 03-06-2008 05:57 PM
Difficult situation please advise Mikesgal Divorce & Family Law 5 05-09-2006 02:56 PM


All times are GMT -4. The time now is 05:41 PM.