Your Mate Wants to Separate: What To Do Till You See a Lawyer: Family Law First Aid

by H. Christina MacNaughton for Parent Quarterly Magazine

This article was written by H. Christina MacNaughton as one of her regular contributions to Parent Quarterly magazine (Spring 96 Issue).

Your mate has just announced that he or she wants a separation. There is no good time to get this news. Never before have you felt so afraid, confused, angry, grief-stricken, vulnerable, and worried.

Even though your spouse is the one who has announced the separation, he or she may be just as confused as you are. Either of you could act rashly out of fear.

It may be several days before you can see your lawyer for advice. In the meantime there are some things you can do to protect yourself financially.

1. Does your spouse have power of attorney for you?

If so, get the document back if a copy is in his or her possession. Go to the bank and cancel any power of attorney you have given the spouse to your accounts there. If your spouse refuses to give it back to you, call your lawyer’s office, explain the situation, and ask them to draw up a “revocation of power of attorney” for your immediate signature.

2. Do you and your spouse have a joint bank account?

The joint bank account can be closed out by either of you. The usual rule is to take half of the contents for yourself.

If you are financially dependent upon your spouse it may make sense to take out all of the contents of the joint account.

Whether you take it all, or only half of the contents, open a new bank account in your own name alone in a different bank, trust company or credit union and deposit the money there.

It is important to deal with a different bank, and not merely with the same branch of the same bank. Sometimes bank employees have been known to take money out of one spouse’s account to cover the other spouse’s cheques. You want to ensure your privacy too.

Do tell your spouse that you have closed the account as soon as the funds are safe in your own account. Keep the bank statement or passbook as evidence of the final balance and of how much you took from the account.

If there are outstanding cheques or pre-authorized withdrawals from that account, arrange to have them redirected or otherwise covered. The last thing either of you needs right now is to injure your credit rating.

Keep careful records. You will have to account to your spouse and the court for what became of the funds–keep receipts for what you pay for with the money once you have taken it from the joint account.

3. It is important to close joint accounts and not merely take your share out of them.

You want to ensure that any jointly owned investments are shared equally between you, and not taken by one of you.

If you have an investment such as a Canada Savings Bond or a Guaranteed Investment Certificate owned by you jointly, it can be cashed by one of you alone by depositing to the joint account and then withdrawing the entire proceeds through that account.

Close this barn door before the horse is already in the next country. Getting the money back can be very expensive and take a long time.

4. How else you can protect joint investment assets.

Another thing to do when you and your spouse own GICs or bonds or other assets jointly is this — go to the bank, trust company, or broker where these assets are held and give each of them a written direction that these assets are not to be released to the co-owner or cashed in, even for deposit to a joint account, without your signature. Sign and date the direction. Give a copy of it to your lawyer when you see him or her.

If possible, take physical possession of such assets yourself, and place them in your own newly opened safe deposit box or leave them in the custody of your lawyer, or a relative or friends who will not give them to your spouse.

We are not counseling you to hide assets. We are advising you to safeguard them from being taken and cashed in by your spouse. You must account for all of your assets to your spouse and to the court to calculate the equalization of your Net Family Property if your separation is permanent.

5. What to do with the safe deposit box.

Go to the bank and remove all the joint assets and all your own assets from the box and make alternate arrangements for their safekeeping.

If there are documents and valuables belonging to your spouse in the box, now is the time to have items such as jewelry appraised. Photocopy all the documents. Return your spouse’s items to the box.

6. Proving your spouse’s income and assets.

Revenue Canada’s records are available in outline form only after a number of years. Your lawyer will need all the information that appears on the documents filed together with the income tax return, not merely the summary information.

Remove and photocopy all T4s, T5s, T3s and income tax returns and accompanying documents you find belonging to your spouse. In fact, having your lawyer’s staff hold the items until your lawyer and you have met is ideal because then notarial copies, certified to be true copies, can be prepared for you.

Treat all bank statements, cancelled cheques, brokerage statements and any other financial records all the way back to and including the date of marriage in the same way.

If charge card statements or purchase slips are available, especially for the last year or two before the date of separation, take these to the lawyer as well, and in the meantime store them safely so that they cannot be destroyed by your spouse.

If you will be claiming support from your spouse, or they may be claiming it from you, these records are of great importance to establish assets, lifestyle, and incomes.

7. What to tell your spouse.

We do recommend that after you have taken these measures to safeguard the assets, that you write a letter to the spouse explaining what you have done, and outlining the exact accounts and documents you have taken.

Tell him or her that the originals will be returned once your lawyer has had an opportunity to make copies.

Remember, under the pressure of separation, some people take well meaning advice of friends and destroy evidence. Don’t let that happen to you.

Take these steps to safeguard the evidence. Making and receiving full disclosure of your financial history helps to ensure that the eventual settlement will be fair to both of you.

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