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DIVIDING MATRIMONIAL PROPERTY IN THE MATRIMONIAL PROPERTY ACT

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These materials were· prepared by Brent Barilla of. McDougall Ready, Saskatoon, Sask. and Jo-Ann Parker of Robertson Stromberg, Regina, Sask. for the Saskatchewan Legal·Education .Society Inc. seminar, Family Law for Legal Support Staff, April 1998.

ACKNOWLEDGEMENTS

We want to thank Douglas Kovatch of Woloshyn Mattison and Maria Lynn Freeland of MiIIs-WllcoxZuk for allowing us· to refer to and reproduce portions of their papers .on Dividing Matrimonial Property previously prepared for the Bar Admission Course.

Brent Barilla and Jo-Ann Parker

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DIVISION OF MATRIMONIAL PROPERTY TABLE OF CONTENTS

A.

mSTORICAL BACKGROUND.•......•.......•••.........•...•.••......•••••.•.••.•.•..........1

B.

UNDERSTANDING THE MATRIMONIAL PROPERTY ACT

I.

APPLICATION•••••••••.•.••••••••••••••••••••••••••••••••••••.•.•••••••••••••••••.•••••••••••••2

II. III. IV.

DEFINITI0 N•••••••••••••.•••••••••••••••.••••••••••.•••••••••••••••••••••••••••••••••••••••••••••3

V. C.

PRELIMI:NARY MATTERS, NEGOTIATION V. LITIGATION AND THE FACT GATHERING PROCESS•.•.••••.•••.•..••••••..••....••.•..••••.••••••6

D.

MATRIMONIAL PROPERTY ACTION

I. II. ID. IV.

V.

I

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PRESUMPTION OF THE ACT•.••••.•.•.••.•••••.•.••.•..•.•.••.••••..•.•.•••..••.•.4 TIMI:NG OF APPLICATION......••••...•.••••.•••.•.....•••...••••.•...•.......••.•••5 DEBTS.••.••.•••••.•.•.•.••••....•.•..••.•.•.•••.••••••••.••••.•.•.•.•.•.•••.•••.••.•••••••••.••••••••.6

COMMENCEMENT••..•••••••••••.•••••••••..•.•..•••.•••.•.•••••••••..•.••.••.•••.•••••.•• 11 INTERIM APPLICATIONS..•..••••••••••••.••.•.•••••.•••••.•.••.••.••••.•••.•••.••.•. 12 DISCOVERIES.••....•...••••••.•.•.......••••••.•.•....•••••.•.•••••••.••••....••••••.••.••.••••14 PRE-TRIAL SETTLEMENT CONFERENCE AND TRIAL••••••• 15 JUDGMENT••••••••••••••••..•.••••.•.••.•••••••••.•••••••••••••••••••••••••••.•..••••••.•••••.••. 16

E.

INTERSPOUSAL CONTRACT••••••••.•••.••••••.••••.•••••..••••••••••••••.•••••••.•.••••••••.•. 16

F.

CONCLUSION••••.••••••••••..•••••••.•••••••••••.•••••••••••••••.••.•••••••••••••••••••••••••••••.•••••.•.•17

G.

PRECEDENTS

PART A

HISTORICAL BACKGROUND TO THE MATRIMONIAL PROPERTY ACT

Historically, under the common law system in England, upon marriage the husband and wife became one. It was said they are "one" and that "one" is the husband. Accordingly, all property which the woman owned prior to the marriage and any property earned or acquired by her subsequent to the marriage became the property of the husband. In short, a married woman lacked the legal capacity to own or control real or personal property.

In 1882 The Married Women's Property Act of 1882 was passed. Essentially, the Act gave the wife a legal capacity to acquire, hold and dispose of property of any kind as if she were a single woman. In 1907 Saskatchewan passed similar legislation, The Married Women's Property Act. It subsequently became The Married Person's Property Act.

Notwithstanding the passage of The Married Person's Property Act significant injustice often remained. Until recent years and particularly in rural Saskatchewan, a great number of wives did not work outside the home but rather remained full time homemakers and mothers. In typical farm families the land, equipment and assets, and virtually all of the property was placed in the name of the husband. As one would expect, upon separation, the fact that the wife had no actual "ownership" had significant impact. It was this type of inequity that eventually led to passage of The Matrimonial Property Act by the Saskatchewan Legislature in 1979, an Act that was designed to provide for both an orderly and fair distribution to property that was acquired by either spouse during the marriage. Actual ownership was no longer a significant factor.

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PARTB APPLICATION OF THE ACT I.

APPLICATION

In order to understand the process of a matrimonial property action one has to have some basic understanding as to when The Matrimonial Property Act (hereinafter the "Act") will apply and what generally it provides for.

The Act does have limitations as to its application. It does not apply to those who have not married or cohabitated in what is commonly called a "common law relationship".

This is

significant given that our society has now become much more accustomed to lengthy but nonmarriage relationships. Although, there are remedies available for "common law spouses" who separate and seek division of property, this type of scenario involves substantially different principles of law and is not the subject of this paper. In short, the Act only applies to persons who are married.

On occasion there are parties who separate and apply for a Judgment for Divorce and nothing else. This is significant since the Act requires an application for division of property to be brought by a "spouse". Once a Judgment for Divorce has been finalized you are no longer a spouse within the meaning of the Act unless at the time of the application you were either still cohabitating with your former spouse or did within the twelve months immediately preceding the matrimonial property action. In other words a party who obtains a Judgment for Divorce and then waits two years prior to bringing an application for division of matrimonial property will be unable to do so. One can appreciate there are times when clients are very anxious to obtain a Judgment for Divorce and wish to do so prior to the often long drawn out process of dividing matrimonial property or determining child and spousal support issues. It is situations such as this

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where you will often see counsel draft a Judgment for Divorce that contains a provision that provides for the issue of child support, division of matrimonial property et al to be adjourned sine die. In this way the Court preserves its jurisdiction over the matrimonial property action notwithstanding that Judgment for Divorce has been granted.

As I will discuss later in this paper, all applications for relief in a family law matters are commenced by way of a document called a Petition. It is quite common to see a Petition contain a number of different types of relief including divorce, custody, support, and division of matrimonial property. It is perfectly permissible to include a matrimonial property action with other forms of relief. It invariably saves counsel from having to go back and amend documents should the client wish to add further relief at a later date.

A fmal point on the application of the Act. A surviving spouse can either continue an application or commence one within six months of probate of the deceased spouse's estate. An estate of a deceased spouse or a personal representative of the estate can continue an application for division of matrimonial property, however, only if it had already been commenced by the date of death.

II.

DEFINITION OF MATRIMONIAL PROPERTY

A Court can only divide "matrimonial property". Accordingly, it is essential to understand what is matrimonial property. Section 2(h) provides a definition of matrimonial property as follows:

"(h)

"matrimonial property" means any real or personal property whatsoever, regardless of its source, kind or nature, that, at the time an application is made under this Act, is owned, or in which an interest is held, by one or both spouses, or by one or both spouses and a third person, and, without limiting the generality of the foregoing, includes: (i)

a security, share or other interests in a corporation or an interest in a trust, partnership, association, organization, society or other joint venture;

4 (ii)

property over which a spouse has, either alone or in conjunction with another person, a power of appointment exercisable in his favour;

(iii)

property disposed of by a spouse but over which the spouse has, either alone or in conjunction with another person, a power to consume, invoke or dispose of the property;

(iv)

property mentioned in section 28;"

As one can appreciate the defInition is very broad and the courts have interpreted it liberally. There is very little property that does not fall within the defInition. Usually, if an issue does arise as to the defInition of matrimonial property it often concerns alleged ownership by a third party. It is my position that notwithstanding there may be an issue as to whether certain property is matrimonial property, it still must be disclosed by your client. It is an issue for the parties to either agree on or for the court to decide. It cannot be a unilateral decision. This is signifIcant because the entire process of the division of matrimonial property is predicated on full and frank disclosure of all assets and liabilities and the courts have taken this extremely seriously.

III.

PRESUMPTION OF THE MATRIMONIAL PROPERTY ACT

Once matrimonial property has been identifIed the starting point in any action is that there will be a 50150 split. However, the presumption of equal distribution is rebuttable. Leaving aside the matrimonial home and contents which requires special consideration, the court can determine that certain property is exempt from distribution or can consider a range of factors that may satisfy it that it would be unfair and inequitable to make an equal distribution of the matrimonial property or its value. The party claiming an exemption or an unequal distribution always bears the onus of establishing to the court that the property should be exempt or unequally divided.

In order to be exempt, matrimonial property must be in existence prior to the marriage. If it is obtained after marriage by either spouse it will be considered to be matrimonial property and presumably shareable. When property is deemed exempt it can only be exempt to the extent of

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its fair market value at the time of marriage. In other words, an increase in value from the date of marriage to the date of division as a result of pure inflationary reasons will presumably be shareable. As well, exempt property can loose its exempt status and thereby become shareable.

In determining what is exempt from distribution one must be aware there cannot be an exemption for the matrimonial home or household goods.

The Act has special provisions for distribution of the matrimonial home. It will be distributed equally between the spouses unless exceptions apply, namely:

(a)

it would be unfair and unequitable to do so having regard to extraordinary ckcumstances;or

(b)

it would be unfair and unequitable to the spouse who has custody of the children.

It is important to note that there is a different standard for displacing the 50/50 presumption with respect to the matrimonial home then there is with respect to other matrimonial property. In other words, there are very few ckcumstances where one is able to successfully argue that there should be anything other than a 50/50 division of the matrimonial home.

IV.

TIMING OF APPLICATION

In order to ascertain a value of the matrimonial property for the purposes of division by the court it is essential to determine the date at which the value is being determined. For example, a house can have a substantially different value at the date of separation, (Le. September 1, 1996) as compared to the date the application for division (Le. September 1, 1998). Most people, and even some counsel are of the QIistaken view that matrimonial property can be valued as at the date of separation. The Act does not provide this and in fact requrres the court to place a value on the assets at either the date of application or the date of adjudication. As one can appreciate this can be problematic when the parties have been separated for several years prior to seeking a

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6 division of matrimonial property, a situation not all that uncommon. In such instances the court is still obligated to determine the property in existence as at the date of the application or adjudication, however, it is usually under those circumstances in which the court will be required to consider an unequal division of matrimonial property.

V.

DEBTS

The courts have consistently held that matrimonial debts are not matrimonial property subject to division. For instance, if the parties actually have more debt than assets the court will not order equal division of the debt. However, notwithstanding the courts view almost all property actions involve a consideration of debt and it does become an entegral consideration in determining the net matrimonial property that is available for distribution.

Debts as with assets must be

disclosed.

PARTC PRELIMINARY MATTERS, NEGOTIATION V. LITIGATION AND THE FACT GATHERING PROCESS In any matrimonial property action there are two distinct phases, the negotiation phase and the conduct of the action itself. In my view the negotiation of a settlement is far more beneficial to a client and the prospect of settlement should always be canvassed and pursued before proceeding with an action. There are two obvious reasons for this. First, unlike having a court determine a matter a settlement allows the parties to have significant input, presumably allowing each party to feel they are a partial winner. At trial there is seldom two winners. Second, a matrimonial property action can be both expensive and traumatic. Litigation does nothing to lessen either the expense or trauma.

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Whether you are going to negotiate and/or litigate a matrimonial property matter counsel must become aware of all assets and liabilities of the parties. This involves the obtaining of relevant infonnation and the exchange of that. Only then can meaningful settlement discussions and/or litigation proceed.

The precedent materials contain sample questionnaires and check lists. Some counsel have their clients fill out the questionnaire while others simply use them as a guide during the first interview.

It is my opinion that the gathering of infonnation should start during the first

interview and must be conducted by counsel and not support staff. However, it is obvious that clients may not have all of the financial infonnation required at their fmger tips and it usually must be obtained from third parties. The first interview is quite often simply an opportunity for counsel to obtain as much information as possible to assist in that process. Although some counsel may choose to have a client obtain the information on their own, it is often the other case. This depends upon the preference of counsel, the client, or both.

In any event it is here that support staff can be of assistance to counsel. For example, suppose a client has numerous RRSP's, a life insurance policy, loans, credit card debts, a car and household contents. In my view it would be very useful and time saving if following the first interview support staff could coordinate the requests and obtain as much of the documents to support the values associated with the relevant assets and debts as possible.

This can be as simple as

forwarding letters to a financial institutions, or picking up the phone and providing a local car dealership with the particulars of a client's automobile with a view to obtaining an estimated value.

It can also mean contacting and coordinating with an appraiser for the purpose of

obtaining an appraisal of household contents. Although every case is going to have contentious or complicated assets that require a lawyer to deal specifically with obtaining valuations support staff can obtain much of the necessary infonnation and thereby save counsel the time and the client the expense in the fact gathering process.

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8 A simple rule to bear in mind is that most third parties will not provide information without a written release of the client. Usually any type of release form will do. I have enclosed a typical release form in the precedents.

In order to assess a client's matrimonial property claim I fmd it useful to make a list of all assets and debts as soon as possible. As values are generated it is useful to ascribe a value to the asset or debt and thereafter attribute it to one party or the other. For example, when an appraisal of household contents is obtained it may all in fact be in the possession of the wife and therefore attributed to the wife's column. Again, if support staff is assisting counsel in gathering this information it can be extremely helpful to periodically add to the list as documents or values are obtained. Attached is a sample asset/debt distribution chart. Obviously, as an action proceeds it will need fine tuning, but there is no doubt that it is very useful for counsel to be able to pick up one of these asset/debt distribution charts and at a glance determine what is there, what values are agreed or contentious, and what is still required. The same chart can be useful at both the negotiation stage and right up to a pre-trial settlement conference and/or trial.

In conclusion, the fact gathering stages is undoubtedly one of the most difficult and time consuming processes during the matrimonial property action, but there is no question that it is essential. Negotiation and/or litigation simply cannot proceed in any meaningful fashion without obtaining full disclosure and exchange of same.

An example of the assistance that support staff can lend to counsel with respect to the fact

fmding process can best be illustrated by way of an example.

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Example:

Mr. Smith attends counsel's office wishing to proceed with a matrimonial property action only. During the first interview it is determined by counsel as follows:

(a)

Mr. Smith has a life insurance policy with London Life but he is not sure of the cash surrender value;

(b)

Mr. Smith has two RRSP's at the Royal Bank of Canada;

(c)

Mr. Smith has a 1990 Oldsmobile automobile with 120,000 kilometers. It is rusted and in rough condition;

(d)

Mr. Smith owns a matrimonial home in which him and his wife are jointly on title. There is a mortgage and a home improvement loan all at the Royal Bank of Canada;

(e)

Mr. Smith remains in the home and has all of the contents except for four major appliances that were removed by Mrs. Smith upon separation;

(f)

Mr. Smith has two loans with the Royal Bank of Canada both of which are joint with his wife;

(g)

Mrs. Smith's counsel has agreed to a valuation of the matrimonial home and contents. It has been agreed that Mr. Jones, a certified appraiser, would be capable of doing both. The costs are to be split;

(h)

That Mr. Smith has filed Income Tax Returns but has not kept copies for the last three taxation years.

In my view if I was able to provide this type of information to my family support staff it would be of significant assistance for my support staff to do the following:

(a)

Have the necessary releases prepared and signed by Mr. Smith to obtain any and all fmancial information from the necessary third parties, Le. release to the Royal

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Bank of Canada and Revenue Canada authorizing them to forward any and all fmancial information and documents with respect to Mr. Smith; (b)

Prepare and forward letters to Mr. Smith's bank requesting particulars as to the value of his RRSP holdings and bank accounts as at a particular date;

(c)

Prepare and forward letters to Mr. Smith's bank requesting payout information regarding the loan and mortgage as at a specific date;

(d)

Prepare and forward a letter to Mr. Smith's life insurance company requesting particulars as to the type of life insurance policy and whether or not there is a cash surrender value and if so, what the amount is at a specific date;

(e)

Conduct a Land Titles search to obtain a copy of the title to the matrimonial home and encumbrances on title;

(f)

Contact Mr. Jones to coordinate an appraisal of both the matrimonial home and all contents contained in the matrimonial home including those items removed by Mrs. Smith;

(g)

Forward a letter and releases to Revenue Canada requesting computer generated copies of Mr. Smith's computer generated Income Tax Returns for the last three years;

(h)

Obtain a rough estimate from a car dealership as to an approximate fair market value of Mr. Smith's automobile.

I wish to reiterate that it remains counsel's role to ensure that all necessary information is obtained and nothing is overlooked, and accordingly any support staffs assistance is in essence limited to obtaining a preliminary snap shot of the parties assets and debts. The importance of counsel thereafter receiving and assessing the final information to determine its completeness, adequacy, and dealing with it, cannot be understated. It goes without saying that some fact gathering must be left to counsel. For instance, it is my position that it is counsel and not support staff who must ensure that they make the necessary written inquiries to a client's employer for pension information. There are many different types of pensions which significantly impact not only on how it is valued but what type of information is needed to properly assess its value.

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PARTD MATRIMONIAL PROPERTY ACTION I.

COMMENCEMENT

As stated previously a matrimonial property action is commenced by way of Petition. Attached hereto is a sample Petition. It should be borne in mind that if a claim for unequal distribution or exemption is being sought then the petitioner must specifically state so and refer to the facts and sections of the Act being relied on. The same applies for an Answer. A copy of a sample Answer and Counter-Petition are attached in the precedents.

If joining a matrimonial property action with a divorce action the Rules of Court require that at the time the Petition for Divorce is filed and issued a registration of marriage shall be filed. The exception is if the court orders otherwise.

When commencing a matrimonial property action the Rules of Court also require a Financial Statement to be filed by your client in Fonn 67. Where a division of property only is claimed and not support, maintenance or custody, then only Part II of the Financial Statement need be completed. A sample Financial Statement is attached to the precedents.

It is my practice to have my clients pencil in a rough draft of their Financial Statement. I usually

review the document and thereafter have support staff complete. I always do a second review before having the client swear the document. Although a Financial Statement is usually prepared at the outset of an action and financial infonnation is not always readily available or known it is important to be as complete in detail as possible. However, if a value is unknown then it should state "unknown".

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12 There are going to be times when counsel wishes to have an action commenced quickly and will not yet have had a chance to complete a sworn Financial Statement or obtain a Certificate of Marriage. In such situation the Rules of Court allow for an ex parte application to be brought to the Court for an Order permitting the issuance of the Petition in advance of these documents being filed. Attached hereto are draft copies of a Memorandum to a Judge, supporting Affidavit, draft Order requesting such relief. It should also be noted that as with all ex parte orders Queen's Bench Rule No. 467(2)(a) must be complied with and the applicable "Take Notice" provision referred to at the bottom of the Order.

One typical example of when an ex parte order is required is when a client has instructed you to commence not only a matrimonial property action but also seeks interim custody and child support. In such situations waiting seven to ten days for a marriage certificate to arrive is simply not an option. The matter must be placed in court immediately. Again, support staff can be extremely valuable with respect to preparing for counsel's review such routine applications thereby reducing counsel's time and the client's expense.

II.

INTERIM APPLICATIONS:

Once a decision to commence a matrimonial property action is made it often becomes necessary to consider the necessity of an interim application.

The most common types of interim

applications regarding a matrimonial property action include: (a)

an application for an Order "freezing" the assets of the parties and thereby preventing non-dissipation by one party;

(b)

an application for interim distribution of matrimonial property;

(c)

an application for interim exclusive possession of the matrimonial home and contents.

The first type of application is necessary where there is substantial evidence that one of the parties is either dissipating matrimonial property or is likely to do so. This is not a routine application in which the courts simply grant an order because it is sought. There must be

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substantial evidence led to warrant an order. For instance, if the parties only asset is being sold by one of the parties without any accountability to the other an order of this nature should be contemplated.

An application for interim distribution of the matrimonial property is less common. An example

where I have successfully obtained such an application was where the husband was in substantial arrears with respect to his child support payments but nonetheless monies were accumulating in another lawyer's trust account from the sale of a family business. I was successful in convincing the court at the end of day there would be substantial assets available for distribution of both parties and that accordingly my client should receive a portion of the husband's share immediately to be applied towards the outstanding maintenance arrears.

Probably the most common interim application following the commencement of a matrimonial property action is to seek exclusive possession of the matrimonial home and contents. In such an application, the party seeking exclusive possession will have to establish appropriate legal grounds. There are a variety of such grounds, but the most common would be that the custodial parent requires the matrimonial home to continue to properly care for and maintain the child.

An interim application is brought by way of a chambers application. At the very least it will

require a Notice of Motion, Affidavit of the client in support, draft Order and Financial Statement.

It is my opinion that these types of applications are not routine in nature and accordingly it is

counsel who should be taking the necessary information and preparing the documents in support of such applications. It should also be remembered that applications of the above nature can also be sought on an ex parte basis if there is sufficient basis for convincing the court that an order is required prior to the matter being heard in chambers proper. If such is the case counsel is well advised to seek an order for the shortest duration as possible or the order should be drafted such ) i

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that it is only in effect until the return date of the Notice of Motion. As one can appreciate the court is usually reluctant to make an open-ended order without the opportunity to hear both sides.

III.

DISCOVERIES

In many matrimonial property actions cases full disclosure will have been made by each party through counsel in the manner previously discussed. It is very common to simply exchange the information and documents through correspondence. However, on occasion, information and documents will not be readily forthcoming and Examinations for Discovery will be required. Essentially this is a process whereby counsel is afforded the opportunity of examining the opposing party under oath. The evidence is transcribed into a transcript that can be utilized at trial. Examinations for Discoveries can be very useful not only to gather information and documents but also to nail down an opponent as to their position on certain areas that may be contentious at trial.

A date for discovery should always be set by agreement of counsel.

Appointments and

Subpoenas should only be required in exceptional cases. Ifthe parties are unrepresented then it is advisable.

The Rules of Court also require each party to prepare and disclose a list of documents in their possession or power that they intend to rely on or are relevant to the action. Statements as to Documents must be in Form 15 of the Rules of Court. Support staff who work on family law matters will be aware that very few family law practitioners actually complete and file Statement as to Documents given that most disclosure is obtained through the informal process. However, the Rules of Court do require a Statement as to Documents. In my view, if there is the slightest concern that there will be any issue as to the reliance or admissibility of documents or you are unfamiliar with the counsel on the other side a complete and thorough Statement as to

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Documents should always be prepared. As with the fact gathering process I find it useful to have my support staff complete a draft Statement as to Documents for my review.

You will find that during an Examinations for Discovery in a matrimonial property action the opposing party will likely have to check sources in order to answer certain questions and not have all the documents at his finger tips. This will lead to numerous undertakings. I fmd it very useful to have my support staff ensure they have a list of the undertakings and that a reasonable diary period is put into place to ensure that I receive an answer to the undertakings in a timely manner. One can appreciate this is important because if you are conducting Examinations for Discovery usually information and documents have not been forwarded on a timely basis. If the information is not forthcoming in a timely fashion then it might be appropriate to commence an application to obtain a reply to undertakings. This is a fairly simple and routine application that in my view support staff is able to prepare in draft for counsel's review.

Attached to the

precedents is a sample Notice of Motion, Affidavit in support and draft Order.

IV.

PRE-TRIAL SETTLEMENT CONFERENCE AND TRIAL

Before any matter can proceed to trial a Pre-Trial Settlement Conference must be held. It has two purposes. First and foremost, it is a method whereby counsel and the clients for both sides are able to meet with a Court of Queen's Bench Judge to canvass the possibility of settlement. It is an extremely important requirement in that it is surprising how many difficult clients will have a change of heart regarding their position when they are forced to discuss it in front of a Judge. If settlement is not achieved then the Pre-Trial Settlement Conference becomes a Management Conference for the upcoming trial.

In order to set a Pre-Trial Settlement Conference a joint request for Pre-Trial in the appropriate form must be completed by both counsel. A sample form is attached. Also note that at the same time a Certified Copy of Pleadings must be filed. As well, prior to the Pre-Trial Settlement Conference both counsel are required to file Briefs setting out the facts, law and their client's ) /

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respective positions. This is a significant document since it is essentially the position that you will undoubtedly advance it to trial should a Pre-Trial Settlement Conferencefail to achieve settlement. Of course, a trial will only be necessary if settlement is not achieved at a Pre-Trial Settlement Conference.

v.

JUDGMENT

Once the Court makes a Judgment in the matter one must issue a Judgment. In this regard a Judgment will be issued according to one of the appropriate forms in the Rules of Court. Forms 30 to 36, inclusive, but usually Form 32 will be applied. A sample Judgment is attached.

E.

INTERPOUSAL CONTRACT

As stated at the outset, the ultimate goal for counsel is to be to work towards reaching a negotiated settlement on behalf of their client. If an agreement is reached between counsel, one of the lawyers usually prepares a separation agreement called a "Separation Agreement and Interspousal Contract".

Sections 38 to 42 of the Act deal with "Interspousal Contracts". The requirements include:

(a)

contract dealing with possession, status, ownership, disposition or distribution of matrimonial property;

(b)

in writing signed by each spouse and witnessed;

(c)

signed separately from the other spouse and a declaration that they are aware of the nature and effect of the contract and they waive future claims and they want to give these claims;

(d)

also must sign a declaration that they have been provided with independent legal advice and they believe the client understands; and

(e)

affidavits of execution completed by the witnesses.

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I have enclosed as a precedent a master interspousal agreement used by our office.

The

precedent is thorough enough that I can often provide my support staff with the details to the custody, child support and property division that a draft interspousal agreement can routinely be prepared by my support staff for my final review and revision.

F.

CONCLUSION

Clearly, not all lawyers practice the same. There are some family law practitioners that rely very little on support staff other than to type material provided. The extent to which counsel's support staff will become involved in the administration of family law files will obviously be different for each lawyer and dependent upon what the parties are comfortable with. However, as one can see, there can be no doubt that a trained and experienced support staff can be of immense assistance to any family law practitioner's practice.

PRECEDENTS TABLE OF CONTENTS 1.

Matrimonial Property Check List and Sample Questionnaires

1

2.

Sample Authorization and Release Forms

24

3.

Sample Asset/Debt Distribution Table

26

4.

Petition

28

5.

Ansvver and Ansvver and Counter-Petition

3'7

6.

Financial Statement

45

'7.

Ex Parte Apj>lication (a) (b)

(c) (d) 8.

51 53 56 58

Interim Apj>lication reo Interim Distribution of Matrimonial Home and Exclusive Possession of Matrimonial Home (a) (b)

(c) 8.

Memorandum to the Judge Supporting Affidavit lJnde~ ofCouIlSel Draft Order

Notice of Motion Supporting Affidavit Draft Order

60 63 '70

Ex Parte Apj>lication (a) (b)

Memorandum for the Judge Draft Order

'73 '74

9.

Appointment for Examination for Discovery

'75

10.

Statement as to Documents

'76

11.

Apj>lication to Produce lJndertakings (a) (b) (c)

) 12.

Notice of Motion Affidavit in Support Order

Joint Request for Pre-Trial Settlement Conference

80 84 91 93

13.

Sample Subpoenas

96

14.

Sample Judgment

98

15.

Certificate of Lis Pendens

l 00

16. 17.

Certificate Discharging Lis Pendens Affidavit in Support of Lis Pendens

l 02 104

18.

Master Interspousal Agreement

106

Page 1

MATRIMONIAL PROPERTY CHECKLIST

1.

MATRIMONIAL PROPERTY QUESTIONNAIRE COMPLETED (see page 4).

2.

FULL DIscLdtURE

3.

FINANCIAL STATEMENT COMPLETED AND SWORN UNDER OATH.

4.

FINANCIAL STATEMENT EXCHANGED WITH SOLICITOR FOR THE OTHER SPOUSE.

5.

APPRAISALS ON FOLLOWING ASSETS:

OF~PROPERTY SITUATION

REQUIRED

FROM CLIENT.

COMPLETED/EXCHANGED

URBAN PROPERTY: FARM PROPERTY: BUSINESS PROPERTY: PENSIONS: OTHER PROPERTY: 6.

ADVICE RE:

INCOME TAX CONSEQUENCES: REQUIRED

7. 8•

COMPLETED/EXCHANGED

: PETITION '·ISSUED. STEPS TAKEN TO PRESERVE THE MATRIMONIAL ESTATE: 1..

CAVEATS FILED;.

2.

CERTIFICATE OF LIS PENDENS ISSUED AND FILED •.

3 .APPLICA'1!ION . MADE TO"PREVENT.DISPOSALOF PROPERTY OR DISSIPATION' OF"ESTATE~ .' '.~< . . . • ,'~ ,;.. ".-' •... ,.i' 9•

EXCHANGE AND DISCOVERY OF DOCUMENTS COMPLETED.

1.0.

EXAMINATIONS FOR DISCOVERY: 1..

APPOINTMENT AND SUBPOENA NOT REQUIRED.

2•

APPOINTMENT AND SUBPOENA ISSUED AND SERVED WITH CONDUCT MONEY.

11.

EXAMS FOR DISCOVERY CONDUCTED: 1.

OTHER SPOUSE'S UNDERTAKINGS COMPLETED SATISFACTORILY.

2.

OUR UNDERTAKINGS COMPLETED SATISFACTORILY.

FURTHER EXAMS REQUIRED ~~ ~ FURTHER EXAMS CONDUCTED

---

12.

JOINT REQUEST FOR TRIAL COMPLETED AND FILED.

13.

CERTIFIED COPY OF PLEADINGS COMPLETED AND

14.

PRE-TRIAL CONFERENCE DATE

15.

ARE ANY STEPS REQUIRED BEFORE TRIAL, AS A RESULT OF THE PRE-TRIAL CONFERENCE. I.E. AGREED STATEMENT OF CERTAIN FACTS.

16.

WITNESSES AT TRIAL

FlLED~

__

NAMES:

BRIEF OF EVIDENCE & DRAFT EXAMS PREPARED:

SUBPOENA REQUIRED:

SUBPOENA ISSUED & SERVED: ..- - .', ~

17.

TRIAL CONDUCTED ON:

18.

JUDGMENT RECEIVED: '~:~~_-r-;jf~ '?'''':e'''''i~. '>'~'.1"""

. , ' :'f')

SETTLEMENT -OF' MATTER

19.

:.~. ;:~··r~:;·?· -~

~ J".'\(~~".• ,:~~~r·:? ~

iNTERspouSi\L' CONTRACT

r - '- ~~ .

~i) ~~-;'1..·7':;.~~"~~;

-.;

.'

;".'

.

.-:.

, :_-;'.:~~£:~.: .

~PREPiRED&~, EXECUTED. ':-:," ~

•..:..~

•..-. .

-

.

-

-

'"

..; '..'

;! . .:

: ," ~!

OR, . -"""\" - " JUDGMENT OR ORDER ISSUED. 20.

IS FINANCING REQUIRED BY CLIENT?

21.

WHAT STEPS ARE BEING TAKEN BY CLIENT TO ARRANGE FINANCING?

'-.

22.

WHO IS RESPONSIBLE FOR PREPARATION TRANSFERS OR BILLS OF SALE?

23.

HAVE ALL RECEIVED?

24.

HAS REGISTRATION OF ALL INSTRUMENTS BEEN COMPLETED?

25.

WHAT ARRANGEMENTS LOAD?

26.

ARE CERTAIN DEBTS TO BE REFINANCED AND PAID OUT?

27.

HAVE RELEASES BEEN OBTAINED FOR THE APPROPRIATE PARTY ON ANY DEBTS NOT BEING REFINANCED AND PAID OPT?

28.

HAVE DISCHARGES OF ANY SECURITY INSTRUMENTS AND REGISTERED?

29.

HAVE MINUTES OF SETTLEMENT BEEN FILED?

30.

OR; IS THE MATTER TO BE ADJOURNED SINE DIE?

OF

THESE

BEEN

HAVE

EXECUTED

BEEN

OF ANY LAND TITLES AND

SUBMITTED

OR

MADE FOR THE PARTIES DEBT

BEEN

FILED

OR A NOTICE OF DISCONTINUANCE

QUESTIONNAIRE RE:

MATRIMONIAL PROPERTY ACT

SPOUSES NAME OF CLIENT: ADDRESS OF :'CLIENT: '.

- ;,.. ----'-------'----------

TELEPHONE NUMBER: AGE:

BIRTH DATE: SOCIAL INSURANCE NUMBER:

OCCUPATION OR PLACE OF BUSINESS: NAME OF SPOUSE: ADDRESS OF SPOUSE: TELEPHONE NUMBER: BIRTH DATE:'

AGE:

SOCIAL INSURANCE NUMBER: OCCUPATION OR PLACE OF BUSINESS: CHILDREN NAME:

RESIDENCE:

BIRTHDATE:

AGE:

) PROPERTY PRESENTLY IN EXISTENCE 1.

WHAT ASSETS DO

EACH

OF

THE

PARTIES PRESENTLY HAVE?

URBAN PROPERTY ADDRESS: LEGAL DESdIPTION:J.

APPROXIMATE VALUE AT TIME OF MARRIAGE: APPROXIMATE VALUE AT TIME OF SEPARATION: FARM PROPERTY AREA: LEGAL DESCRIPTION:

APPROXIMATE VALUE AT TIME OF MARRIAGE: APPROXIMATE VALUE AT TIME OF SEPARATION: MACHINERY IN EXISTENCE:

'APPROXIMATE:VALUE:;'AT, Trim .OF'