August 2, 2022
Key points to keep in mind when doing your divorce financial statement.
1/ Pick the right form
In Ontario, if your relationship is ending you need to make financial disclosure to your spouse before you do a Separation Agreement and especially if you are in court.
This absolutely has to happen if you are in court. The courts have set aside Separation agreements because one spouse has not made full disclosure to the other of their significant assets and debts. In short, that means it’s serious for you to get your financial statement done and done right to protect the agreement you make (or to give the Court the information it needs to make an Order in your case).
Your first job is to pick the right financial statement form for your situation. Thankfully, there are only two to choose from. A Form 13 or a Form 13.1. The one for whether you are married and the one for whether you are common law. Common law is not formally married. Contrary to what is commonly believed, there’s a huge difference in the two.
Rule 13 of the Family Law Rules sets out further details if you want to do more reading on it. Essentially, if you are married and have not yet resolved the division of your assets (called equalization) you will always have to use the married form.
All forms are numbered in the Family Law courts. Even if you are not in court, you still should use the Family Court forms. We recommend this instead of doing your own spreadsheet as it has all the categories to make it easier for you to not miss something. You must use these forms if you are in Court.
The married form is called Form 13.1 Financial statement (Property and Support Claims). You can find this at http://ontariocourtforms.on.ca. The support cases only (typically common law couples) form is called Form 13 Financial Statement (Support Claims). You can find it at the same link. Keep an eye out when you download the form as a Form 13 is not the same as a Form 13.1. Precision is important when it comes to forms.
Sometimes, even if you are married, you can use the Form 13, instead of the Form 13.1. You can do this if you have no assets that need to get sorted out, such as a house – known as the matrimonial home- pension, or bank accounts, etc.. It is rare for a married separation to need only a Form 13.
2/ Have a document to back up what amounts you put in the statement & keep copies
Just because you fill in the statement does not mean the work is over. If you are not in court, it is likely that your spouse, or their lawyer, will ask you for the documents that back up your statement. They are not digging; they are just doing their job. For lawyers, it’s called due diligence. They are checking that you have done your statement the right way. Often people will put numbers in their statements, and they have simply put the wrong ones in by mistake because they read their form incorrectly. We often find people have their documents but look at the wrong line. We do not assume they are deliberately deceiving us; it is just a mistake because this is not something they do day in and day out. Remember, you can ask your spouse (or their lawyer) for the same back up documents to confirm the numbers your spouse put in their own financial statement.
Be prepared that your spouse or their lawyer, or the Court will ask for the document to back up what is in your statement. We often recommend you send the documents at the same time you send the statement. Basic documents to send are your last three years of income tax returns, three recent pay stubs, your bank account statements, debt and credit card statements, etc. It becomes more complicated if you have a business or a pension. Those often need separate valuations to be done. An excellent reason to call for some assistance to find out what to do with those.
Do not send back up documents to the court right away, other than your income documents. The court does not need your bank statement or credit card statement unless they ask for it or you are at a contested hearing. They will ask you to send them to the lawyer for your spouse or directly to your spouse.
It is critically important to keep a copy of everything you send to your spouse’s lawyer or spouse. You may need to prove you sent them the documents you did, and you want to have that proof handy. As we said, you may need to file all of your back up documents should your case not settle and you have to prove your financial documents to the court.
3/ expenses – the form is per month, not per year.
Key to getting your financial statement right is getting your expenses part (your budget) right.
This is found in Part 2 of the form. On both the 13.1 and the 13, it is Part 2. The critical part to understand is the form is done by month. It wants monthly expenses. We often see people putting yearly amounts in, which really confuses things. That is common when people rush through the form. Slow down and read it through.
It is easy to remember things you only pay once a month, such as rent. People sometimes pay their mortgage per month, but more commonly they pay it every two weeks and some people every week. This is when you need to do a bit of math. You must be as accurate as you can be in your expenses. If you have a bill you pay every two weeks (like mortgage or childcare), grab your calculator. Here is how you do it: let’s say your childcare is $500 every two weeks. The common response is to say, well, I pay those two times per month, so it’s $1000 per month. Wrong. You know that in some months you end up paying it 3 times because every month is not an even number. A monthly expense is calculated by taking your bi-weekly cost ($500) multiplying it by 26 to get your yearly cost and then dividing by 12 to get your monthly cost. $500 x 26 ÷ 12 = $1,083.33. No, $83 is not a huge difference, but when you make that mistake on several items, you can really cause yourself problems whether you are paying or receiving support from your spouse.
Remember to make the same adjustments for your yearly costs and weekly costs. Take a weekly cost and multiply it by 4.33 to get your monthly number. Take your yearly and divide them by 12.
Watch out for budget costs that you do not think about as monthly. Most commonly these are things like banking fees. Another big one is gifts. You need to add up how much you spend on Christmas, birthdays, and such throughout the year, then total those and then divide them by 12. You may be surprised by how much you spend.
4/ Note all assets
People commonly know they must include things like their house value, their bank account balances but then forget they need to put in their car, their RRSP, or their pension. In these statements, you must show all major assets. These must be things you own, or things owned jointly by you and your spouse, or a third party. Often that can be a sibling or a parent. If the asset belongs only to your spouse (such as their car), do not put them on your form.
The next part of assets is to put the market value of them down – not what you paid for them. People are often upset to find out that the $5,000 power recliner they bought 3 years ago is now only worth $250.00. Or the $30,000 car is now only $20,000.
Make sure you look for back up evidence to go with the numbers you use. If you can get a car value appraisal by an auto dealer, that is the best evidence of fair market value as they will have seen and inspected your car.
In the assets part, put in all land you have in your name. This can be a vacant piece of cottage land, or a shared piece of land with someone else. Put them all in at their fair market value. This often means you need an appraisal done. Do not put the mortgage amount here, that goes in the debts part further down the form.
A key piece of land is the matrimonial home. This applies if you are married. If it is in your name or joint names put it down here. You can have more than one matrimonial home if you have a summer cottage or winter cabin/condo. That is a legal issue.
There are more instructions to these forms. You can see our blog of March 20, 2020, for more. Plus, take a look at YouTube where my colleague Lawrence Pascoe did a video series on Form 13.1. It was done about 9 years ago, however it will be a valuable guide to you.
5/ Details – they are important
When doing the forms, be detailed and as accurate as you can be. Some people miss things when thinking about their entertainment budget (we hear: “I don’t go out anywhere!”) and forget that they pay for Disney+ or Netflix and take the kids to museums. You may forget to include that your drug plan only covers 80% of things and that the 20% you do pay needs to be detailed as an expense. Include things like gym memberships, different groups you belong to (such as the hiking group you just joined as someone recommended physical activity is a great support for your mental health through this stressful time). Children’s field trips, school lunch money, the deductions your employer makes for health benefits are all important details.
The forms appear long and daunting. Just take it slowly. We suggest a cup of coffee, breathe deeply and do not tackle the whole thing in one sitting.
Always remember, we are a phone call away for any help you may need with these.
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