Family Relations

makes no provision
for division of debts

MY WIFE and I have recently separated. She says she gets
one-half of all our assets which consists of mainly our
home, two cars, furniture and our pension at our respec-
tive employments but does not have to be responsible for
any of the debts in my name. I am a mechanic and I’m a
partner in a service station and yepair shop.

Unfortunately, my business has
more debts than value, but that
wiay change in the future and I
appreciate that I have (o share my
business assets with my wife. On
the advice of my accountant my
partner and I delayed our income
tax one year so that at the present
time I owe for the income I made
in 1990 which I must pay by April
of 1992 and J owe for the income
T have eamed in 1991.

I also owe the bank for the
small addition F put on to the
matrimonial home last year and of
course I am responsible for half
the debits of my business which
includes 2 small business loan.
How do I stand?

There is no provision for the
division of debts in the Family
Relations Act, but the court will
often use its ability to grant one
party a greater than one-half
share in the assets so that the par-
ty responsible for the ‘debts will
get more assets than the other
spouse thereby allowing him or
her to pay the debts and the net
equity portiou of the parties to be
approximately equal.

Not all debts will be a shared

responsibility, but it does seem
reasonably certain law at the mo-
ment that income tax will be taken
into account by the court. All
other debt must be incurred for
the family or in relation to one of
‘the shared family assets if it is to
be considered a debt that would
warrant an unequal division.

My husband is an alcoholic who
becomes very violent when he
drinks. I can’t stand to live under
the same roof with him any longer
because I never know when he is
going to hit me or terrorize the
children as he has done in the
past.

I want out but feel I can’t go
because our three children go to a
nearby elementary school and I
have no place to take them to live.
is there any solution?

You should enlist the aid of a

lawyer and ask him or her to ap-
ply to court for an order to have
your husband excluded from your
nome and for you to have interim
custody of the children. Your
lawyer can go to court without
your husband’s knowing and get
the order keeping your husband
from entering the home again.
: The police wil! then ensure he
doesn’t enter the home once the
order is obtained. Your husband
will have the opportunity to have
the order set aside as it is usual to
have these ex parte orders served
within a specific time on the other
party to allow them to respond.

Family
Affairs

HUGH
STARK

KIRSTIE
MACLISE

My wife says she’s through with
me and changed the locks on the
door to our condominium two
days ago. She also says she will
call the police if I come around.
What right has she got to do this
to me and what can I do?

Normally neither spouse has the
right to lock the other spouse out
of the home no matter who owns
the home or who has signed the
lease if it is a rented premises. The
police, however, will often in-
tervene and ask the excluded party
to leave if the home or lease isn’t
in joint names or isn’t in the ex-
cluded pafty’s name.

You would be wise to have the
police attend with you and request
of your wife that she allow you to
enter. If she does not allow entry,
then if you feel you must, you can
force your way into your home.

You must remember, however,
that you will only be exacerbating
the problem and possibly exposing
yourself to claims for assault,
sexual harassment, property loss
and other similar claims by your
wife which even if fictional will be
hard for you to disprove and
cause you legal expense and grief.
It may be wiser to seek a court
order allowing your right of
possession or, depending on the
circumstances, an order for sale
and division of the proceeds.

My husband says if I try to get
maintenance from him over and
above that which be pays for our
children, he will quit his job and
then nobody will get anything. I
live in our home with our two
teenage children. We have a
summer cottage, two cars and my
husband has an RRSP. I think he
means what he says, but I have
never worked and can’t support
myself without his financial

assistance. Can he get away with
this?

You could immediately register
a Spouse Protection Act lien
against the matrimonial home so
that he could not deal with the
property by mortgaging and sell-
ing his interest in any way. You
could also get a court order pur-
suant toe the provisions of the
Family Relations Act to restrain
your husband from dealing with
any of his property whether that
be land, business shares, RRSPs,
bank accounts, or whatever.

If a court thought your husband
was sincere in his threats, and
your need and need of the
children for financial support was
appropriate, you might receive ei-
ther a greater than one-half share
of all family assets or a lump sum
maintenance award secured
against assets in his name. Don’t
be intimidated.

What is the difference between
arbitration and mediation in fami-
ly disputes?

Mediation is a process whereby
the parties, if mediation is suc-
cessful, arrive at and agree with
the settlement of their dispute.
There must be an agreement be-
tween both of the parties. The
inediator is a facilitator, not a
decision maker.

Arbitration is a process whereby
one or more adjudicators after
hearing all of the evidence arrive
at a decision which resolves the
dispute in a way that may not be
agreeable to either party just like
a judge decides a court case. Both
parties normally jointly retain the
services of the arbitrator just as
they do the mediator.

The questions and answers
given ‘in this column are for gen-
eral information only.

if you have matrimonial prob-
lems you should seek legal advice
so that your advisor can assess
your particular circumstances and
give you the best advice.

Questions about family law and
estates can be directed to Stark &
MacLise c/o Family Affairs,
North Shore News, 1139 Lonsdale
Ave., North Vancouver V7M

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