Ask the Hammer

How many times have I met clients who are looking to change attorneys and when asked to remit copies of their procedures that they are referring to, they say they don’t have it/them. Or they have some unsigned copy so it is not clear if it is the final copy that was served and deposited into the Court record or a draft that was subsequently modified.

Every client is entitled to and should receive copies of all documents (procedures/letters/exhibits) from their Attorney even when they say they don’t need a copy! Why? Because the file is about their issues, and they are the Boss after-all of their own file.

At the initial consultation with the lawyer you are considering or mandating, there are a few do’s and don’ts to consider. This is not by any means an exhaustive list and every client and every file is different. This is why telling your lawyer that so-and-so down the block got XYZ in their divorce is not because, regardless of what they told you about their case, or what you think you know about them, you will never know all the facts that impacted in their file that led to their judgement, and their facts will never be as relevant as your facts.

Make sure to write down a list of questions you want to ask your lawyer, but bear in mind that unless your lawyer has all the facts pertaining to your case, which is rarely possible at a first meeting, the answers cannot be complete.

For example, often clients come in and cannot tell the lawyer the values of assets held (theirs or those of the other spouse), the debts which they have and/or how same came to be, or the monthly household expenses (such as Hydro, Municipal taxes, insurance, etc.) which numbers are used on the statement of Revenues and Expenses to determine possible spousal support levels.

I open a sub-topic here to state that each person in a relationship:

a) has a right to know this information during the marriage at all times 

-and-

 (b)  should make it their business to have access to and know what everything actually costs.

No matter who pays the bills, abdicating this responsibility is irresponsible and does you a disservice in the end. So ask and insist on this information even if you do not plan on getting divorced.

In order to get the gist of how supports orders are adjudicated, or if you are simply contemplating a life of two, I recommend completing the four (4) page Budget Form from the Superior Court (Family Division) FORM III (Payor). I highly recommend you to test it out.  Use this form, even if it is just to test your knowledge of what life is actually costing you, an exercise we should all partake of. Here is the link to the 4-page form: http://www.tribunaux.qc.ca/mjq_en/c-superieure/regle-pratique/famille/forms/formIII_en.pdf

Further, you should repeat this exercise yearly if for no other reason than to monitor your spending habits and annual savings. Yes savings, which you should always factor into your expenses because no one else will do it for you. And you can also use these “savings” yearly to contribute to either your RRSP, thereby providing you with a Tax deduction, or to your TFA account allowing you to save Tax FREE.

And speaking of taxes, if you are already in the midst of Divorce proceedings (or a Modifications proceeding) and paid legal fees in 2018 you may be entitled to deduct a portion or ALL of those fees on your Returns.  The rules differ Federally and Provincially but either way you will need a receipt from you lawyer in order to claim the deduction.

While support creditors can deduct fees paid to fix or modify support and/or collect arrears, both federally and provincially, payers of support may only claim a deduction provincially. So be sure to have your accountant include this deduction on your returns if you meet the criteria set by the governments, because this deduction may also save you from having to pay more tax. And if you don’t ask you won’t know, so ASK!

Me. Hammerschmid has practiced Family Law since 1982; Senior Partner at Hammerschmid & Associates; founding & current member of Family Law Association of Quebec (past Secretary for 28 years). Inquiries treated confidentially: 514-846-1013 or hammerschmid@vif.com © 2019 Linda Hammerschmid 

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