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Occupational Rent – Sharing Expenses of the Family Home after Separation

September 2021

When a couple separates, one spouse usually continues to live in the family home while the other person moves out. Who pays the expenses of the family home after separation? Based on each spouse being entitled to 50% of the home at the time of separation, here are some considerations.

First, this article is presented to help you decide who pays what in a fair way. It is intended as financial advice, not legal advice. You should speak to a legal professional to determine the applicability in your case of any issues discussed here.

The person resident in the home will want to ensure that all utility bills are paid; it is good to keep the heat and lights on. In addition, both parties will want to protect the value of the home, especially if they plan to sell it. That means mortgage payments, property taxes, repair bills and insurance must be paid. I will refer to mortgage payments below, but in my opinion, property taxes, insurance and major repair bills (or renovations) fall into the same category.

Meanwhile, the person who has moved out (the “non-resident spouse”) is likely paying rent for an apartment, or perhaps sharing costs while living with friends or relatives. It would not be fair to the non-resident spouse to be required to pay for the operating costs of two homes. On the other hand, if they still own 50% of the house, it is in their interest to protect the value of the home by ensuring the mortgage and taxes are paid, and that it is insured and kept in good condition.

How should the costs of the household be shared to be fair to both parties?

Creativity and flexibility to deal with these costs are critical, giving consideration to the circumstances of each particular case. Here are some things to consider:

The person who has moved out will be paying rent (or mortgage payments), including utilities, for their new accommodations. Therefore, it is only fair that the person living in the family home pays its operating costs. Such costs would include heat, electricity, water and sewer, lawn mowing/snow clearing and minor repair bills. These items would be similar to those being paid by the spouse now living elsewhere (some of which may be included in their rent).
The mortgage payment relates to ownership of the house. If the home is going to be sold, and if the parties will split the proceeds, then the payment should be shared equally. If the person living in the home is keeping it, then that person should be responsible for all costs. This includes the mortgage payment because they will get their equity back when the property is sold. Often, until the separation agreement is finalized, one cannot be certain about the final disposition of the home. In such a case, maybe mortgage payments should be shared equally until final decisions are reached. If separation negotiations result in the house being sold, then each party would receive 50% of the net sales proceeds. However, what if one spouse receives full ownership as part of the equalization settlement? In that case, mortgage payments made subsequent to the separation date by the new owner would be 100% for their benefit. This is because all of the future growth in equity of the property after the date of separation (or valuation day) will accrue to that person. Hence, if the other spouse paid a share of the mortgage payment after separation, they should be reimbursed by the spouse keeping the home.
As discussed above, property taxes relate to ownership of the home. Insurance is primarily related to protection of the home’s value. For this reason, I believe property taxes and insurance should be also shared in the same way as the mortgage payment. Adjustments would be made, if necessary, if one spouse keeps the home permanently. This is the same treatment as for mortgage payments. (Caution – sometimes the mortgage payment includes the property taxes – do not count it twice). Differences of opinion exist with respect to these expenditures. In particular, some advisors recommend that insurance should be paid by the person in the home as part of their operating expenses.
Major repairs and home renovations improve or protect the value of the home for both parties, and should also be shared equally (i.e. treated the same as the mortgage payment discussed above). This includes any fix-up costs to prepare the property for sale as part of the separation agreement.
What about “occupational rent?” The person living in the family home is occupying one-half of the property owned by the other spouse. If you lived in an apartment, you would be expected to pay your utilities, such as electricity, your own tenant’s insurance and most repairs for anything your break within your apartment. This is comparable to paying the operating costs of the home. However, in an apartment, you are expected to pay rent in addition to your utilities. This rent is to cover other costs paid by the landlord, including the down payment for the original purchase of the property, the mortgage, property taxes, building repairs and building insurance. Rent also provides the landlord with a markup for profit. For the person remaining in the family home, their ex-spouse is a 50% landlord – because the ex-spouse still owns one-half of the house. The resident spouse is living in a home owned 50% by themselves and 50% by their ex-spouse. If the non-resident spouse still owns 50% of the property, and is still paying one-half of the mortgage payment and property taxes, they are paying for two homes. Meanwhile, the resident spouse is only paying for part of the home in which they are living. Is this fair? In addition, if the non-resident spouse is paying rent and utilities to an unrelated person, their rent likely includes a markup for profit, i.e., for a similar property, it would be more expensive than sharing expenses on the family home. Consequently, the non-resident spouse should receive some rent for the 50% of the family home used by the resident spouse. You could look at this another way – the spouse living in the family home should be helping the non-resident spouse cover their new apartment rent because of having to find new living accommodations. Both spouses should be paying for the equivalent of one living accommodation. This particular amount is called “occupational rent” – rent to be paid by the person “occupying” the home for the 50% that is owned by the non-resident spouse. Without this occupational rent adjustment, the spouse living “at home” is paying for 50% of their accommodation, and the non-resident spouse is paying for one and one-half homes.
The court may order a party to pay occupation rent if it is reasonable and equitable to do so, based on the case of Griffiths v. Zambosco, 2001 CanLII 24097 (ONCA), at paragraph 49. I understand that courts consider various factors in deciding if and how much occupational rent should be paid. First, for example, certain other payments made by the person living in the home may offset the occupational rent. Or, the rent may be offset by support payments that are owed. There are many issues to consider, some of which are set out in the court cases of Charron v. Charron, 2014 ONSC 496, Casey v. Casey, 2013 SKCA 58, and Reif v. Reif, 2021 ONSC 3976, such as:
- is spousal support is being paid;
- is the house is being improved and maintained in preparation for selling by the occupying spouse;
- has the occupying spouse increased the selling value of the home:
- is financial hardship being experienced by one party;
- who is paying the expenses associated with the home;
- where are the children living and is child support being paid;
- has there been movement towards selling the home;
- is a balance still owed on equalization of net family property;
- when was a request for occupational rent made;
- will payment of occupational rent be fair and equitable to both parties; and,
- various other financial and non-financial issues.
In many cases, occupational rent is ignored in consideration of these factors. Sometimes occupational rent is generously waived by the non-resident spouse, at least until another contentious issue arises, in which case it is then used as a bargaining tool. If paid, the rent might be 50% of the fair market rent based on the rental value of the home, adjusted for the above factors. One solution that is used is for the resident spouse to pay 100% (instead of 50%) of the mortgage payment as a reasonable estimate of occupational rent. This latter approach simplifies the calculations significantly, but one needs to compare the mortgage payment to a reasonable rental rate to see if it is fair.
Is payment of occupational rent taxable? Typically, occupational rent is a cost sharing arrangement pending finalization of the separation, and there is no profit motive to the rent collection. Hence, there should no income tax considerations to someone receiving such rent. However, if there is a reasonable expectation of profit (i.e., there is an investment objective), then the Canada Revenue Agency will want the income and expenses to be reported.
Sometimes the person occupying the home will take in a tenant, e.g., rent the basement, to help with finances. This rental income will typically be shareable between spouses in the same way as mortgage payments and property taxes (after deducting any specific expenses incurred related to the rent). This type of rent may also need to reported on your tax return(s), depending on whether there is a profit intention or if it is just a sharing of out-of-pocket expenses.

As you likely now see, dealing with the family home is yet another complex area for negotiation (and for bookkeeping) in your separation process. However, keeping track of all of your payments and keeping all of your receipts (and mortgage statements) related to the home will be important.

By the time you reach your final property settlement, both parties have likely each made many payments related to family assets, debts and child custody. You will be anxious to sign the documents, and move forward. However, ensure you have only paid a reasonable share of post-separation expenses before you sign the agreement. A lawyer’s recommendation to forget about any imbalance may simplify the final negotiations, but could be costly. Maybe the difference is small or maybe it is big – and maybe you are willing to forget about the differences in any case, especially given the high costs of professional fees. However, as a financial planner, I would suggest you should at least know approximately the amount to which you are agreeing. It is easy for someone else to tell you it is not worth the hassle to figure out the numbers, but only you can decide if $1,000, $5,000 or $20,000, for example, are significant amounts.

There are so many possible combinations of arrangements with the family home. Sometimes the person remaining in the home is going to be a payor of support, and sometimes it will be the recipient; other times, both parties remain in the home living separately, and other times neither are in the home while the home is being held for resale. And, of course, such arrangements may change over time.

Tracking who pays the expenses can become a bookkeeping nightmare, but knowing how much each person paid towards housing expenses can be an important number when a final settlement is being negotiated for support and equalization of net family property. A retroactive adjustment may very well be necessary, and calculating it may be difficult. For this reason, I recommend keeping things simple. Set up a system so that each person pays the same expenses each month, and that all invoices, bank records, etc. are filed in the same place to be used for bookkeeping purposes when needed.

Closing all joint bank accounts, joint lines of credit and the joint credit cards is normally a wise move, or at least placing restrictions on accounts to prevent either party from increasing credit card, loan or overdraft balances.

To pay shared expenses, whether they relate to the family home or for child and spouse living costs until a settlement is reached, consider one of two options. First, the person who is expected to pay support in the future could pay a flat regular amount to the other spouse sufficient to cover certain expenses, for example, $2000 per month. The recipient spouse can use this money to pay the necessary expenses, and then an adjustment can easily be calculated when support amount is finally determined. If the support obligation is $3,000 per month, and $2,000 was paid, a lump sum catch up payment can be made. If it is $1,500 per month, a repayment can be made, or future payments can be reduced. Because such a payment is a regular periodic payment, the amount may also qualify as spousal support for tax purposes depending on when and what final agreement is reached.

A second option where both parties trust each other is to open a joint bank account with each party contributing regular periodic amounts to that joint account. The joint account is then used to pay specific shared expenses as agreed by both parties, such as the mortgage, child care, child education and extracurricular activities, etc. Again, with regular payments being made to that joint account, later adjustments can be made more easily because of the simpler bookkeeping. However, it is still important to keep records identifying all payments made from that account.

Finally, if you plan to keep the family home, make sure it fits into your budget. It is a very costly investment at a time when you very likely need to adjust your lifestyle for lower cash flow. Can you afford the mortgage and the maintenance costs, and still have enough money for other living expenses? The wise choice in many cases is usually to look at other housing options for financial purposes; emotional decisions do not pay the bills. While it may be difficult emotionally to move, especially with children involved, think about how much more difficult it will be in the future if you are forced to cancel extracurricular activities and also move because of financial difficulties. Talk to a financial divorce professional to help with the numbers, or perhaps a local credit counselling or family services centre to help you prepare a personal budget. Such counselling services may be free or much less expensive than hiring a financial professional. Use your legal counsel to understand your rights and options.

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Blair Corkum, CPA, CA, R.F.P., CFP, CFDS, CLU, CHS holds his Chartered Professional Accountant, Chartered Accountant, Registered Financial Planner, Chartered Financial Divorce Specialist as well as several other financial planning related designations. Blair offers hourly based fee-only personal financial planning, holds no investment or insurance licenses, and receives no commissions or referral fees. This publication should not be construed as legal or investment advice. It is neither a definitive analysis of the law nor a substitute for professional advice which you should obtain before acting on information in this article. Information may change as a result of legislation or regulations issued after this article was written.©Blair Corkum

Questions and/or an Agenda for Your Initial Separation Financial Meeting

May 2019

Starting the separation process can be a daunting task. The emotional turmoil of the separation combined with the unknown factors that will impact you create huge challenges. There is so much you do not know, and so many important decisions, combined with so many emotions. You may not even know what questions to ask. To help you, I provide you with this list of questions that I actually use as my first meeting agenda unless clients show up with their own specific meeting plan. This process is all about helping you – do not be shy or embarrassed. Take a friend, adult family member or your counsellor with you if you wish. Professionals working in family law understand your lack of knowledge and the emotional stress, which is why it is important to work with a person experienced in family matters.

If you will be working with a trained financial divorce professional, such as a Chartered Financial Divorce Specialist or a Certified Divorce Financial Analyst, I suggest meeting them early to understand the finances. If you will be working without such a financial specialist, then use this agenda for your mediator or lawyer. Many accountants do some work in this area, but are not trained in how all of the financial aspects of separation and divorce work. Be sure you have a full understanding of financial implications (immediate and long-term) before going down this very expensive path. And, as they say, knowledge is power – knowing the rules can help you ensure you receive your proper entitlements. Knowledge will also help you know that your legal advisors understand what they are doing and/or are not misleading you into thinking you can get more than is fair.

Your meeting agenda is up to you. Unfortunately, it is a lot of information – perhaps too much for one meeting. However, in order to keep your fees low (especially since you are likely paying by the hour), write down your questions before your meeting so that you and your advisor can focus on the answers. I hope the following list helps you.

Topics to discuss, data to provide, and issues to understand:

Review the financial professional’s training in separation and divorce, related experience and his or her approach to working with you
- - Confirmation of confidentiality
  - Hourly rates
  - Determination of whether you want a written summary of this meeting, and at what extra cost
  - May you record the meeting? This may be easier than note-taking and less expensive than a follow-up letter.
Set the agenda by identifying your specific questions – write down your questions and concerns before the meeting.
Provide your status (I often use a form to be completed before the meeting, available here.)
- - Date of separation
  - Date of marriage (if applicable)
  - Date of cohabitation – if common-law, or if common-law prior to marriage
  - Children involved – current custody, ages, education, disabilities, other issues
  - Names of lawyers / mediator / family counsellors / other professionals with whom you are working
    - Provide written permission for discussion of your information with other professionals if you so wish
  - Determination of the legal process you are using, or if undetermined, a review of options (typical litigation process, mediation, collaborative practice, do-it-yourself)
  - Discussion about the importance of emotional stability to make good financial decisions
  - Overview of prior relationship breakdowns, and/or children of other relationships
Discuss an overview of the financial issues (further legal advice will likely be required)
- - Equalization of assets
    - Valuation of current assets and liabilities
    - Valuation of assets and liabilities at date of marriage
    - Differences between marriage and common law rights
    - Exceptions, such as inheritances and insurance settlements
    - Tax issues – valuation and transfers; non-deductibility of periodic payments
    - Valuation issues (pension, real estate, business)
    - Financial settlement options/challenges (e.g. ability to make payments)
    - Maintenance of the family home after separation, including occupational rent by the person living in it
    - Special issues if a private business is owned by one or both spouses
    - Sale of property and related tax issues before the divorce is finalized (e.g. election to avoid capital gains attribution under Income Tax Act section 74.5(3)(b))
    - Reminder of forms that may be needed
      - T2220 for RRSP division by tax-deferred rollover
      - T2091 for principal residence transfer
      - Election per ITA 73(1)(d) if rollover not to be used
      - Election per ITA 74.5(3)(b) to avoid capital gains attribution on sales before divorce
      - CPP credit splitting (rules differ for unions ended between 1978 and 1986 versus later) (Service Canada Form ISP1901)
  - Child support
    - Sole, shared, split, joint custody definitions and differences
    - Determination of income for child support payments
      - normal calculations – employment, business, etc. and documentation needed (tax returns, business statements, pay stub)
      - evidence issues if accusations of unreported income
    - Basic support and Special expense sharing
    - Payment of interim support and ongoing common expenses until separation details are finalized
    - Eligible Dependant Credit and Canada Child Benefit, etc. based on custody, especially shared custody issues
    - Reminder of forms that may be needed
      - Marital Status Change – CRA form RC65 required 90 days after separation
      - To apply for a change to the Canada Child Benefit and GST/HST Credit, see Canada Child Benefits Application Form RC66
  - Spousal support
    - Entitlement (which is a legal issue)
    - Determination of income and support amounts, including a discussion of the Spousal Support Advisory Guidelines
    - Taxation – periodic versus lump sum payments, retroactivity limitations
    - Duration
    - Payment of interim support and ongoing common expenses until separation details are finalized
      - equal, periodic maintenance payments vs. irregular payment of bills
    - Tax credit choice in year of separation – spousal support deduction or spousal amount credit
    - Reminder of forms that may be needed
      - T1158 Spousal Support registration
      - T1198 for tax averaging of lump sum receipt of retroactive taxable support
      - T1213 to reduce income tax withholdings if taxable support is being paid (just ask your employer or pension payer to increase tax withholdings to avoid a big bill at tax time or quarterly installment requirements if taxable support is being received)
  - Personal budgeting
    - Will you require a personal financial budget
      - for legal proceedings
      - for personal need and understanding that you will be okay financially
  - Post-separation payments and bookkeeping
    - How should post-separation expenses and debt payments be paid and tracked so they can be properly shared
    - Are joint accounts and credit lines still being used and how should they be handled
Other topics to discuss
- - Life insurance requirements for children by custodial parent and by parent paying support, as well as regular needs for ongoing cash flow security
  - Group insurance coverage – maintaining existing coverage and assuring future access to coverage
    - do not change beneficiaries until seeking legal or financial advice
  - Other insurance needs – critical illness, disability, vacant house coverage, any other specific needs
  - Are there any foreign country financial issues?
  - Updating of Wills, Powers of Attorney, Health Care Directives, joint ownership issues, beneficiaries of life insurance, RRSP/RRIF/TFSA, and segregated mutual funds
  - Future of the Registered Education Savings Plan for the child(ren)
  - Tax deductibility of professional fees (re: support)
  - Segregating bank accounts, credit cards, lines of credit and other steps to prepare for separation. See my article on Preparing for Separation.
Additional information resources
- - Community Legal Information Association of PEI or your own public legal information office
  - Address change and contact checklist to ensure you tell everyone
  - Internet resources – see my Useful Links and my other Financial Divorce Counselling Articles
Engagement letter documentation – is there a letter or contract to be signed? How are fees to be billed?

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Separation and Divorce – Step by Step Financial Guidance

February 2017

This is a step by step overview of the separation and divorce process. I am looking at it from my viewpoint as a financial professional. However, I hope it will help you be ready for what is to come, and perhaps help you with your preparation.

Note that reaching a separation agreement is not the same as getting a divorce. They are two separate matters, with partners often being separated for many years before getting a final divorce.

Lawyers and family counsellors will have other opinions and ideas. This is not a list of things you should do in every instance and it does not include all possibilities. In fact, these are my opinions and based on my experience. Proceed based on the advice of your own advisors and your individual situation. In many cases, you should discuss these items with your lawyer before moving ahead with them. Hire financial and family professionals to help you.

If the lists of things to do in this article look complex, that is because it is. The separation process is emotionally, physically and financially challenging. It will be much simpler and less expensive (but still not easy) if you are able to talk to your partner openly and without anger. You need to be respectful and fair with each other.

For starters, take steps to protect yourself and your children as necessary – safety first. Call 911 if necessary. In PEI, with abusive situations, contact the PEI Family Violence Prevention Services at 902-894-3394. There will be similar agencies in other provinces. I will refer frequently in this article to Prince Edward Island resources, but the principles will be similar in other provinces.

I recommend that you contact your provincial public legal information association. In PEI, this is the Community Legal Information Association of PEI (CLIA) (1-800-240-9798 / www.legalinfopei.ca). In PEI, CLIA can provide you with their family law kit, a lawyer referral, and other valuable information, including a Do-It-Yourself Divorce Kit for uncontested divorces. In addition, I recommend that both men and women obtain the publication titled, “Moving On, A Practical Guide for Women Leaving a Relationship”, from the PEI Advisory Council on the Status of Women (902-368-4510 / www.gov.pe.ca/acsw). It explains many of the topics that both of you will face through this difficult process. At the time I am writing this, it is available online at http://www.gov.pe.ca/photos/original/moving_on_new.pdf. You will face challenges – understanding them is a very important first step.

For privacy purposes, consider changing your address. If you are still residing at home, consider renting a post office box. Notify parties of your updated address and contact information. Refer to my checklist titled, “Address Change and Contact Checklist” available on my website.
Decide who will stay in the home. Decide how the household expenses will be paid. (See Note 1)Get advice from a lawyer before you move out of the house to ensure your rights are protected with respect to the family home. In addition, while you may be emotionally attached to it, it may not be feasible to keep it. (See Note 2)
If you are moving out of the home, consider taking copies of all financial, insurance, and similar documents. See my article on Documents You May Need – Separation and Divorce
Before you start negotiating, ensure your emotions are under control. Speak with a counsellor to help you get through this tough time. Do not chase unobtainable goals because you want revenge (even if your legal counsel offers to help you or even encourage you to do so). Do not settle for too little because of guilt. Both of these options will likely cause you future financial difficulties. The reasons for the separation are not relevant in reaching the legal answers in most jurisdictions, so you are likely wasting your money on professional fees.
Meet with a social worker or other family professional (counsellor) to establish a parenting plan for children, including temporary custody arrangements. You will also need to decide on how to manage both physical custody and decision-making affecting the children. Your family professional/counsellor can help you. “Children come first” is the approach used by the legal system when making decisions for separation and divorce. Get advice and read about the impact of this process on your children. Protect your children as much as possible from negative impacts.
Separate your financial obligations from that of your former partner. Unless otherwise agreed, close joint bank accounts, joint credit cards and the joint lines of credit, etc. Set up your own individual accounts. (See Note 3)
If you have authorized people to share your information with your partner, cancel them. This may include, for example, bankers, brokers, insurance agents, accountants, tax preparers and government agencies (e.g., the Canada Revenue Agency (CRA)). If you change tax preparers, advise them to cancel any prior authorizations given to the CRA.
Cancel any active Powers of Attorney for which your partner has the power to represent you (refer to your lawyer on how to do this). Contact any parties directly that you know are relying on the Power of Attorney and tell them it is cancelled.
Change your personal identification numbers (PIN) and passwords. Keep them secret. Put passwords in place where you may have private information, such as on your cell phone, computer and email accounts. Make them difficult for others to know and never share them with anyone! Do not use names of family or pets, and use a combination of letters, numbers and symbols.
If temporary child or spousal support is required to meet living expenses, make payment arrangements. (See Note 4)
Review your household, tenant and liability insurance coverage to ensure it is adequate going forward, especially if you move to a new home or rent an apartment, or if the house is going to be vacant.
Ensure your life insurance is appropriate to support your family going forward in your new circumstances. Negotiate with your former partner to ensure he or she has sufficient life and disability insurance to meet ongoing support obligations in case of his or her death or inability to work.
If you are a member of your spouse’s group insurance through work, take steps to keep health coverage for you and your children as long as possible. Do this promptly before you are removed because you may not be able to be reinstated. (See Note 5)
Decide what legal process you are going to use to reach a final separation agreement. There are various alternatives. Costs will depend on how willing both parties are to work together to reach a solution. (See Note 6) You have two choices to start – (a) to meet with your professional team early to obtain information and direction, or (b) assemble your financial data first to make the most of your meeting. Regardless of your timing, write down all of your questions before attending any meeting. This will keep your meeting efficient and minimize your fees. I often meet with individuals to review the financial issues before they meet with a lawyer. This works well if you want to work things out together and reach some solutions before hand.
Make a list of everything you owned at the date of separation. Do the same for the date of your marriage. You should list the values at each date. You may use court approved forms to do this to save some time later. (See Note 7) You will likely need to update this list later if amounts change significantly after your separation. Ensure that you use appropriate financial experts. (See Note 8)
Prepare a monthly budget (divide your expenses that are only paid once per year equally to each month). Make two columns. The first one is based on your past expenses. The second one is an estimate of your future costs with new living arrangements. (See Note 7)
If you have been separated for 90 days, file Form RC65 – Marital Status Change with the Canada Revenue Agency (www.cra-arc.gc.ca). Also file this form if you re-marry or enter a common-law relationship. For income tax purposes, common-law means once you have lived together with a new partner for twelve months. This differs from how common-law is defined by provincial law for separation matters. This CRA form is important to ensure you receive the correct Canada Child Benefit, GST/HST credit, and other amounts that are based on your family income as reported to the CRA. Unless filed, you may be placed in a difficult repayment position when you file your tax return. OR, you may miss out on additional cash flow to which you are entitled. Under payments or over payments, if any, will depend on your personal income situation.
If you are going to court, it is helpful to understand the process and even see the courtroom before you need to go. This will help reduce your stress. Ask your lawyer if this is possible. To obtain information about court proceedings, speak to your provincial public legal information association. In PEI, CLIA periodically holds public information sessions at the courthouse, and you may wish to participate if any are scheduled.
Your negotiations will result in a written separation agreement or a court order. For a written agreement, ask your lawyer or mediator to have the draft agreement reviewed by a financial expert prior to signing it. There may be income tax or other financial issues that may impact you in ways you may not expect. (See Note 8)
In the year you separate, and each year up to and including the year after your agreement or court order is finalized, there may be special tax rules to consider. This is particularly true when children are involved, for the year when support payments commence and/or for the year you are billed by your professional advisors for helping you receive support. Get professional help with your tax return. Read the CRA publication regarding support payments if you wish to research more on your own. Their booklet, P102 Support payments is an abbreviated version of their interpretation document, Income Tax Folio S1-F3-C3.
Will you be paying or receiving support payments that are deductible/taxable? If so, you must file Form T1158 Registration of Family Support Payments with your tax return in the year the separation agreement or court order is made. You must attach a copy of the agreement or court order.
Determine whether you should apply for a Canada Pension Plan split, and do so if it is to your benefit. You may do this if you are divorced, or if you are separated for at least a year, subject to limitations in certain situations.
Will you starting a new job? Are you employable or do you need to upgrade your skills and education? Obtain guidance on doing so from government employment agencies. Discuss your needs with your financial professional and lawyer so that the costs are considered as part of your budget during your separation negotiations. Also, have a talk with your family professional (counsellor) so that you start your job search when the timing is right for you. This may vary given your emotional and personal circumstances. If you are employable and choose not to work, and have a spouse or children to support, you may be still be required to make support payments. Be aware of this financial consideration when deciding your future plans.
You will need to review the beneficiary designations on your life insurance, employer pension plans, Registered Retirement Savings Plans, Registered Retirement Income Funds, Tax Free Savings Accounts, segregated mutual funds and any similar products.
You will likely need to update your Will, Power of Attorney, Health Care Directive and preplanned funeral directions. With respect to your Will, obtain appropriate planning advice if you are entering a new relationship so that you protect the interests of your own children. If you bequeath your assets to a new partner, your children from earlier relationships may not share in your wealth if you die before your new partner.
Have you transferred ownership of property to your former partner as part of the separation? Will this property (not counting RRSP’s) be taxable upon its eventual sale by your former partner? Has the property, e.g. real estate or stock market investments, been sold before your divorce is final? You may have significant tax costs if this occurs because of something called attribution. A special tax election must be filed to avoid these tax consequences, so ensure that your former partner advises you of such sales and his or her tax preparer makes the appropriate elections. This is not an issue after your divorce is final.

I remind you that children are often a casualty of this process because of the feuding between parents. The effects can be far reaching, effecting their education, emotional wellbeing, and many other elements of their life. Keep this in mind while you and your partner are working through this process, and take steps to protect them. Be respectful and fair to your former partner for the love of your children.

I hope this article helps you understand some of the issues involved on your path to separation and divorce. My goal is to help you and your former partner to understand the process and be prepared for certain issues. Indeed, I hope that it helps you reach fair decisions with lower stress and cost than without any guidance. I encourage you to work together to reach a solution that will be reasonable for both of you, rather than turning to the courts to make a decision. In the courts, a stranger will be setting the terms of how you will deal with dividing your personal assets and dealing with matters in the future.

Notes:

Note 1: Often, the person living in the home will pay all of the household operating expenses, such as heat, electricity, telephone, cable TV, etc. This is often called “occupational rent” because these are expenses to occupy the home, while the other partner pays rent in a new location. Paying such expenses assumes that the party remaining in the home has sufficient money to do so. If not, other negotiations related to support payments are required. Mortgage payments, property taxes, major repairs and insurance are expenses to maintain the value of the home, and are often shared equally until a decision is reached on who will take the home, unless it is sold. Then, whomever retains the home will take responsibility for those costs retroactive to the date of separation.

Note 2: Obtain financial advice before you make a decision to keep the house (rather than downsizing to a more affordable living accommodation). Can you afford the mortgage? Are you capable of paying future bills? Are you physically able to maintain it? It is usually financially better to sell the home and share the proceeds, or to transfer it you your former partner. It is better to give up the comfort and emotional attachment of your existing home than to struggle to feed yourself and your children in the future.

Note 3: If you and your former partner are not getting along, get advice on your banking arrangements. This is very important for joint accounts and joint liabilities. There are alternatives, some of which include the following:

Where you can communicate reasonably with your former partner, you can divide the joint bank account equally and close it. Alternatively, where there are continuing family expenses, such as those related to the family home and for raising your children, you may decide to keep the joint account. You could both deposit money based on a fair arrangement, and agree to spend that money on specific items, such as certain expenses for your children.
You may decide to close joint accounts and pay shared expenses from your own individual bank accounts. Periodically, you would settle with each other for any balances owing when one person has paid more than the other.
If you close the joint account, and where there is only one income, the working partner may deposit money to the other partner’s bank account for the use of the other partner until a final separation agreement is reached. This would be considered interim support.

Regardless of how you handle joint accounts, open a bank account in your own name. This will start the process of building responsibility for living on your own and taking care of your own money. It will also help in case your partner takes the money from joint accounts without authorization. In addition to dealing with bank accounts, cancel any joint credit cards and joint lines of credit that will no longer be used. If you are unable to repay or cancel them, provide a letter to the issuers to indicate that you will not be responsible for additional debts incurred after your separation date. Apply for a credit card in your own name – but use it only if you can afford to pay the bill. You will be accountable for the transactions, and its use will help build your own credit rating. Pay it off monthly. Get monthly statements from joint bank, credit card or loan accounts, or make sure that you have access to the records so you can watch over the account. Contact the issuer to see how to do this if the service is not readily available.

Bookkeeping is very important in all of these situations. Until your separation is finalized, keep receipts and record the purpose of all bills paid from your joint account. Do this also for payments from your own accounts that relate to family matters. This will help to make sure that bills paid may be properly divided between you and your former partner during the separation process. Separate your bills – those that are your own, those that are shared costs, and those that belong to your former partner.

Note 4: When paying temporary support, I recommend regular bi-weekly or monthly payments of equal amounts be paid to the other party’s bank account. For the payer, this will provide evidence of cooperation in later negotiations. Also, with regular, equal amounts, they may meet the tests necessary to be tax deductible support payments if a written agreement is reached by the end of the following year. To be deductible, the person receiving the money must have complete control over its use for his or her maintenance, or to support children. For the recipient, it provides a dependable cash flow that can be used for budgeting purposes, although it may later result in a tax cost (that should be considered in future negotiations.)

Note 5: Seek legal advice if your partner threatens to remove you from his or her group health policy. If you are removed from the policy, you may not qualify to be added later because of the policy terms. (You may no longer fit the spouse definition). Many group insurance policies allow a former spouse to remain on a policy if it is required by a court order or written agreement. If you are a member of a group policy now, but there is risk you may lose this coverage, consider buying a special policy that guarantees your ability to obtain insurance in the future without a need for medical tests. Blue Cross offers this coverage at a price based on your current health, called Assured Access – ask your insurance agent for more information. If you do not presently have coverage, investigate whether you should buy your own policy – either through work, an association to which you belong, your bank, a credit card offering, etc. or a private policy. Obtain several quotations to ensure you get appropriate coverage at the best price, and ensure you can afford the coverage.

Note 6: If you are agreeable on all topics, you may be able to do the legal process yourself. (In PEI, the Community Legal Information Association (CLIA) has a court approved Do-It-Yourself kit that you can purchase for a reasonable cost.) If you have issues to work out, but you are still communicating with each other on a reasonable basis, working with a mediator may be the best solution. Even with mediation, if you are not comfortable with the legal and financial decisions to which you need to agree, you may also want to consult a lawyer and a financial expert (Chartered Financial Divorce Specialist or a Certified Divorce Financial Analyst) Be sure you are agreeing to a fair solution. If you think you would like to have the expertise of a lawyer advocating for you, and you and your former partner are still able to have open communication, you may wish to use the collaborative practice approach. Each party will have a lawyer representing them, together with a neutral financial person and family (mental health) professional/counsellor. You and your former partner will meet in group sessions to work out a mutually satisfactory result. The team members help you reach your own solutions, and ensure that the process is fair. This approach often produces the best solution possible in a difficult situation. If communications with your former partner are strained, or nonexistent, the standard litigation approach may be needed. Each of you will hire your own lawyer and work independently with that lawyer. (Contact your provincial legal aid department if you cannot afford a lawyer.) Even in litigation, working with a financial expert on the numbers will typically still be in your best interest because many family law lawyers are not trained in budgeting, valuations and income tax. Their hourly rates may also be higher than those of a financial professional. A mental health professional is almost always an asset – you need to have a clear head to make good decisions.

Note 7: For official forms, see your provincial government web site or visit your provincial public information association site. In PEI, to download a form to create your budget and list your assets and liabilities in PDF format, you can go directly to the Supreme Court of PEI web site forms list. Other provinces will have similar family law document sites.

Note 8: Chartered Financial Divorce Specialists (CDFS) and a Certified Divorce Financial Analysts (CDFA^®) are financial planners trained for working in the separation and divorce field. Certain Chartered Professional Accountants may have significant experience, particularly with tax issues, but not likely at the depth of a CDFS or CDFA^®. While family law lawyers will be familiar with the results of financial analysis, most are not trained to do the calculations. Other financial specialists may also be required. If you have real estate, consider using accredited appraisers to obtain values (do not use the property tax value); for businesses, a Chartered Business Valuator may be needed to value the business. An actuary trained as a pension valuator will likely be required where one of you is entitled to a guaranteed lifetime pension from your employer (called a defined “benefit” plan), such as paid to government employees. Pension values provided by employers (such as the federal government) are not normally appropriate for separations. It is important to use an actuary to ensure the pension split is fair if you are accepting a lump sum settlement. For more on the pension valuations, and the reason for the common error in using the wrong value, see my article, Pension Values for Separation and Divorce – A Common Error – Use the Correct Value! And remember, all assets must be valued after allowing for tax costs – the value of a taxable RRSP holding $100,000 in investments is much less than the value of a tax free $100,000 principal residence.

Note 8: The Income Tax Act and other legislation set out who will receive the Canada Child Benefit, GST/HST credit, etc., as well as entitlements to Canada Pension Plan splitting and how various payments will be taxed. Stating within the agreement that there are certain entitlements or that specific amounts will be taxable or not taxable will have no effect if it violates the law. In particular, the Income Tax Act is very specific with respect to whom may claim tax credits for children. Lump sum payments also have peculiar tax treatments, sometimes differing between court orders vs. written agreements.

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