What is a legal
The question of
whether a marital separation has occurred, as a matter of law,
depends on the specific circumstances of a family's situation.
certain situations, spouses may be considered to be living separate and
apart, even if they continue to reside in one home, under the same roof.
Such a separation may have occurred, as a matter of law, where
conjugal relations have ceased, the parties live largely separate lives
and routines, and the spouses have clearly determined that their
relationship has come to an end.
at least one of the
parties no longer resides in the former matrimonial home, separation of
the parties is more plainly evident.
There is no
specific legal document required in Ontario to evidence or formalize a
A Separation Agreement may be concluded some
time after the parties' actual marital separation. The absence of such
an agreement in the interim does not prejudice or change the parties'
status as "separated" from each other.
of the actual date of separation
may be of importance in
establishing the property entitlements of the spouses. It is also
important in determining the date upon which a divorce judgment may be
lawfully finalized. A
Divorce Judgment may issue in Canada one year following the date of the
It is strongly
that spouses who are considering separation or already separated consult with a
qualified Family Law lawyer at an early stage. By speaking to
legal counsel, it will be possible to become more fully
informed as to the legal consequences of decisions or actions which are
being considered. In an initial consultation at WISE
you will receive a complete, general orientation as to the legal,
practical and personal implications of your specific family's circumstances.
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Custody and Access
One of the most
important and difficult decisions
to be made at the time of
separation involves the determination of the residency and legal custody
of children of a marriage. Ontario law provides that custody matters are
to be determined at all times with reference to the best interests of the
Section 24 of
the Children's Law Reform Act provides that the merits of a
custody or access application are to be determined on the basis of the
best interests of the child.
The Act mandates that in
determining the best interests of a child, a Court shall have regard to
all the needs and circumstances of the child, including:
(A) The love,
affection and emotional ties between the child and his or her parent
or other person claiming custody;
(B) The views and preferences of the child where such views and
preferences can be ascertained;
(C) The length of time the child has lived in a stable home
(D) The ability and willingness of each party applying for custody of
the child to provide the child with guidance and education, the
necessaries of life and any special needs of the child;
(E) Any plans proposed for the care and upbringing of the child;
(F) The permanence and stability of the family unit with which it is
proposed that the child will live; and
(G) The relationship between the child and each person who is a party
to the Application.
speaking, as a child becomes older, his or her views will have a more
significant influence on the outcome of a custody Application. The views
of pre-school or primary grade children will typically be less
influential to a Court than the stated preferences of pre-teens and
Where a dispute is
present as to the custody of children, family law custody
assessments are often conducted by psychologists, psychiatrists
or social workers who are retained by either or both of the parties to
provide recommendations to the Court as to the best interests of the
children, their residency, and their custody. In their
investigations, assessors will typically speak with the parties,
grandparents, children of the family, extended families, educator,
physicians, and other important people, to help them reach their
number of separating families
consider joint custody arrangements in
an effort to provide for the welfare and best interests of their
children. A wide range of residential arrangements, tailored to the
specific needs and routines of the particular family, can be considered
in joint custody negotiations, and formalized in joint custody
does not necessarily require that children spend equal residential time
with each of their parents. While there are many circumstances in which
such residential time is equally shared, many other joint custody
arrangements provide for primary residence with one parent and secondary
residence on weekends and holidays with the other.
What is consistent
in almost all joint custody arrangements is the commitment of parents to
work cooperatively and jointly, even though they are separated, to make
decisions for the benefit of their children.
custody circumstances, parents seek to establish an environment which
encourages children to have strengthened, comfortable and consistent
relationships with both of their parents.
have consistently hesitated to make joint custody Orders where it does
not appear that the parties can adequately cooperate and work together
for the benefit of their children. This trend, however, is
softening over time. many jurisdictions currently have laws that
mandate joint custody, unless such an arrangement would not be in the
best interests of the children involved.
joint custodial arrangements are achieved by way of agreement between
the parties, rather than Court Order, although Courts do at times make Orders for joint custody, despite opposition from one parent (or both),
where circumstances are deemed to warrant it.
Where a sole
custody Order is made, a child will typically have primarily residence
with his or her custodial parent.
parents and their children, however, remain entitled to ongoing,
including (where appropriate) overnight, weekend,
religious holiday, birthday and extended summer vacation access. Legal
advice should be obtained to determine the specific access arrangement
which is appropriate and reasonable in a given situation.
Parents who are
entitled to access are also entitled to be kept fully informed by
doctors, dentists, teachers and schools as to medical and educational
issues relating to their children.
are also entitled to have input
into important decisions affecting
the educational, physical, religious, social, and moral development of
their children. Typically, however, where one parent has sole custody
of a child, that parent is entitled to make final decisions
regarding such matters, unless a Court orders otherwise.
unusual circumstances, where unsupervised access might pose a genuine
hazard to the well-being of a child, consideration will be given by a
Court to imposing supervision requirements upon access visits.
Supervision may be conducted by grandparents, mutually agreeable
relatives or family friends, or at Access Supervision Centers.
right to access is a paramount entitlement. Increasingly, Courts are
imposing sanctions upon custodial parents who interfere with or
otherwise impede access.
Once an access
agreement has been concluded or a court has made an access order, neither
parent is free to unilaterally extend, suspend or terminate such
access in the absence of a Court Order. It is essential that legal
representation be obtained in order to seek enforcement or variation of
an access Order.
and other family members
are also entitled to bring an Application
to have access with children, in cases of unwarranted
estrangement. While the entitlement to such access depends on the
specific circumstances of the family, Ontario Courts do generally lean
toward the belief that it is best for children to maintain their
extended family relationships to the greatest extent possible.
Grandparents and extended families often provide much-needed stability,
continuity and security to children at times when their worlds are
parents prefer to avoid reference to terms like custody and access in
their Parenting Agreements.
such families opt for Shared Parenting arrangements or Joint
Such agreements set out detailed residential
schedules of the children, the specific rights, duties, and obligations
of each of the parents, establish decision making processes, and provide
for dispute resolution processes to be utilized, including mediation, in
the event that a dispute arises with respect to the children.
provides a forum within which parties can adopt a less
adversarial approach to the resolution of important issues affecting the
well-being of their children.
While parties can
reach agreement through mediation, they are required to have their own
independent lawyers, and to obtain thorough legal advice as to any
proposed parenting agreement prior to executing any final settlement
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Pursuant to the
Divorce Act and the Family Law Act,
the amount of basic
child support payable upon separation or divorce is now determined exclusively with reference
to legislated Child Support Guidelines.
The Guidelines came into force on May 1, 1997.
Examples of the required, basic Guideline support are reproduced below.
The Guidelines determine the amount of basic child support payable by a
parent with reference to only two considerations - the income of
the support payor and the number of
children in the family who are entitled to support.
for Ontario from The
Federal Child Support Guideline Tables
Complete Child Support Guidelines and Legislation may be found at the
Department of Justice Child Support Guidelines Homepage
payments pursuant to this system are not taxable
or included in
the income of the recipient, nor may they be deducted from the income of
the support payor.
Expenses - Section 7 of the Guidelines
In addition to the
basic Guideline Support payments, further support
may be required in payment of special or extraordinary expenses
incurred on behalf of a child.
The expenses typically qualifying as
"special or extraordinary" include orthodontic and dental
expenses, daycare or child care costs, tutoring or other special educational expenses, and
related to a child's special needs or skills. Ordinary expenses for
children's typical activities are not generally considered as
"special or extraordinary," but circumstances do vary, and it
is important to obtain legal advice regarding the entitlements and
obligations in any given case.
Pursuant to amendments to the Guidelines
legislation that came into effect in May, 2006, Courts were granted much
increased flexibility in determining whether certain extraordinary
expenses will require additional financial contribution by a support
The amendments to the Guidelines will affect claims for
contribution by a payor to extraordinary expenses for:
A custodial parent requesting such
contribution must demonstrate that the requested extraordinary expense
cannot reasonably be covered by the basic support payable.
- primary or secondary school education
or for any other educational programs that meet the child's
particular needs, and
- extraordinary expenses for
This "reasonable coverage" requirement may well
impose a new threshold or test for determining whether additional
contribution to an expense is required.
At the very least, the Courts are to be given a widened discretion by
While this may be seen as codifying a discretion that has to some extent
already been exercised, it does open up a significant statutory front
for resistance by payors to claims for contribution toward the specified
These amendments do not affect the requirement
of contribution for day care and child care expenses, medical and dental
expenses, or the costs of post secondary education. These expenses will
continue to be assessed, taking into account:
- the necessity of the expense in
relation to the child's best interests
- the reasonableness of the expense in
relation to the means of the spouses and those of the child, and
- the family's spending pattern prior to
are strictly followed
by the Courts in all but a few, very unusual
cases involving genuine financial hardship or extreme inequity.
Consult with a
lawyer to determine the actual support obligations
each individual circumstance. Legal advice may also be necessary to
assist in calculating the income of a payor and to ensure that complete
financial disclosure is made by a payor.
Loco-Parentis: When might Step-Parents be required to pay Child
Blended families are increasingly common for Canadian children.
In certain circumstances, upon a
subsequent separation, adults in such families who have acted in the
role or stead of a parent may have a legal obligation to contribute
toward the support of their non-biological children of such blended
Whether a person has stood in loco parentis, or in the place of a
parent, is a factual question determined by the courts based on the
individual circumstances of such families.
In Chartier v. Chartier,
the Supreme Court of Canada
stated that "the nature of the relationship" between step-child and step-parent must be determined in light of the particular familial circumstances, to asses whether the step-parent meets the threshold of
Some of the factors the court may take into consideration in determining whether the step-parent meets the threshold of
standing in the place of a parent include:
- the duration and nature of the
- step-parent's involvement in the
day-to-day life, discipline, extra-curricular activities, and schooling
- the step- parent's financial contribution to the
- the child's participation in the step-parents extended family's activities;
- the relationship between the step-child and step-parent after separation.
- how the child referred to the
- another biological parent's involvement in the step-child's life;
- any discussion relating to the possible adoption of the
Where a step-parent is found to have an
obligation to pay child support, the amount payable is determined with
reference to the Child Support Guidelines. Children may be
entitled to full Guideline support from more than one parent. The
child support payable by a step-parent will not be reduced on the
basis that additional support is received or payable by another parent
for the same child.
Where there are multiple support payors,
however, special expense claims under section 7 of the Guidelines are
properly shared and apportioned, proportionately, between the support
recipient and all such payors.
Responsibility Office (F.R.O.) is an office of the Ontario
Government charged with the duty of receiving support payments and
paying them, in turn, to the intended recipient. F.R.O also takes
steps to enforce support orders and to secure payment of outstanding
a new or amended support order is made in Ontario, the Court will also
automatically make a Support Deduction Order, which requires that the F.R.O
collect all support moneys payable by wage
deduction or garnishment from the payor's employer.
system functions much like other payroll
deductions for income taxes and benefits. Employers who fail to
comply are subject to legal sanctions.
arrears of support have accrued, the recipient may request that the
F.R.O. take steps to enforce. These enforcement actions can be
very forceful in extreme cases of default, and can include driver's
license suspensions, garnishment of income tax refunds, derogatory
notations on the payor's credit record, default proceedings against the
payor in Family Court, and even incarceration.
F.R.O. cannot change or suspend a support Order, even in times of
hardship. F.R.O. solely enforces support Orders. Only the
Court can change the amount of support payable. I
arrears of support have accrued due to a change in the payor's
circumstances, such as illness or unemployment, it is essential that
legal advice be obtained, and consideration be given to immediately
pursuing a court action to vary the existing Court Order.
Unless the Court changes a support Order, F.R.O. will be required to
continue enforcement and collection.
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and Canada's proposed Spousal Support Guidelines
has an obligation to provide support
for himself or herself and for
the other spouse, in accordance with need, to the extent that he or she
is capable of doing so, pursuant to s. 30 of the Ontario Family Law
Act. Section 15 of the federal Divorce Act also provides for
the payment of reasonable support, where circumstances warrant, by one
spouse to the other.
of marriage, a spouse may apply for an Order for support. There are
many circumstances relevant to determining a spouse's entitlement to
spousal support, including:
- the duration of the
- any economic
disadvantage, hardship or financial consequences experienced by a spouse
as a consequence of the marriage or the breakdown of the marriage;
- the degree to which a support order will promote the economic
self-sufficiency of each spouse within a reasonable period of time.
payments made pursuant to a Court Order or written Agreement must be
included in the taxable income
of the recipient and are subject to
Spousal support payments may be deducted from the taxable
income of the payor. This contrasts with the tax treatment of Child
Support payments under the Child Support Guideline regime. Such
child support payments are neither taxable nor deductible.
agreements which provide for spousal support may be subject to a variation
where a party experiences a significant, or material change in his or
her financial circumstances. As an example, spousal support payments
are often reduced or suspended upon retirement of the payor or
achievement of economic self sufficiency by the recipient.
Legal advice should be obtained to determine:
- whether there is an entitlement to spousal support;
- the amount of support payable;
- the duration such support shall be payable;
- whether there are sufficient changes in
circumstances to justify a variation of an existing spousal support
Order or Agreement.
Canada's new Spousal Support Guideline
A new Federal Government proposal calls
for a radical change in the way Canadian Spousal Support awards are
to be determined.
The Spousal Support Advisory Guidelines Proposal, released
in January 2005, attempts to bring much-needed predictability and
certainty to the Courts' determination of spousal support
entitlement, quantum and duration.
Two different formulas are suggested - one for families with
dependent children, and a different approach for those without
dependent children, as will be explained below.
Guidelines are advisory - not
Currently, the proposed Guidelines are not mandatory, and represent
an approach which the Courts may choose to consider in
exercising their existing discretion as to spousal support claims.
Under the Guideline proposal, where there are no dependent children,
spousal support is to be calculated at 1.5% to 2%
per year of marriage of the difference between the parties'
gross incomes to a maximum of 50%
for marriages of 25 years duration or longer.
To determine what support, within this range, is appropriate and how
long it is to be payable, Courts will consider a number of factors.
These include the duration of the
marriage, whether it is appropriate to compensate a spouse for
negative economic consequences from the marriage, the need for
financial support, a spouse's contribution to the enhancement of the
other spouse's earning potential, any illness or disability, any
imbalance in responsibility for the family's debts, and legal
obligations to support other dependents.
Spousal support is to be payable for .5 to 1 year of support for
each year of marriage. Support to terminate at this cut-off date.
Support to be indefinite (no end date) for marriages over 20 years,
or under the "Rule of 65," where the total of the
recipient's age and the years of marriage exceed 65.
Families with Dependent
Where children continue to be
supported after a separation, the starting-point for calculation is
each spouse's individual's net disposal income (INDI),
or the amount remaining after payment or receipt of child support,
income taxes and other allowable deductions.
A support order is to be made which
provides between 40% and 46% of the two parties' combined INDI to
the recipient spouse.
To determine what support, within
this range, is appropriate and how long it should be payable, Courts
will consider a number of factors, including the duration of the
marriage, decisions made within the family to meet the children's needs which affected the recipient's earnings and income-generating
potential, the children's' ages and needs, whether it is appropriate
to compensate a spouse for negative economic consequences from the
marriage, the need for financial support and the ability to pay
support, the parties' standard of living prior to separation, a
spouse's contribution to the enhancement of the other spouse's
earning potential, any illness or disability, any imbalance in
responsibility for the family's debts, and legal obligations to
support other dependents.
For shorter marriages
of under ten years, support will terminate, at latest, when the last
child of the family completes high school.
For long-term marriages of
20 years duration or less, it is proposed that support be payable up
to one year for each year of marriage, or until the last child of
the family completes high school, whichever is longer.
Support is to be payable
indefinitely for marriages over 20 years, or under the
"Rule of 65," where the total of the recipient's age and
the years of marriage exceed 65.
The proposed guidelines may represent
a small step forward in regularizing spousal support awards in
Canada, but certainly do not eliminate all uncertainty or the
ongoing discretion of judges in deciding this issue.
Unlike the Child Support
Guidelines, which provide a specific table amount for a child
support Order based on the payor's income, number of children and
Province of residence, the proposed spousal support changes will do
little to provide complete predictability as to the amount of
support to be paid and the duration of payment.
Having said that, the consistent
application of a specified formula will, over time, probably reduce
the disparity between court awards in similar circumstances, and
narrow the guesswork currently involved in anticipating likely
outcomes in Applications for spousal support.
Will Judges use the Guidelines? Time
will tell, but if the Child Support Guideline experience of
the mid 90's can provide any historical reference, our anticipation
is that over time, Judges will increasingly refer to, clarify and
adopt to overriding principles set out in the Guidelines.
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Agreements and other Domestic Agreements
Agreements are formal, legal documents setting out final or temporary
(interim) agreement by the parties as to all legal issues arising from
their separation, including arrangements relating to children, financial
support, settlement of the spouses' property claims, and possession of
the parties' matrimonial home.
agreement also typically include additional provisions whereby the
parties agree that they will not advance further claims against each
other in the future, with the exception of issues specifically referred
to in the agreement as being subject to change or variation in the
Agreement may be concluded some time after the parties' actual marital
separation. The absence of such an agreement in the interim does not
change the parties' status as "separated" from each other.
Agreements are generally concluded after complete financial disclosure
regarding income, assets and liabilities has been made by both spouses.
To make such financial disclosure, each spouse provides a sworn
Financial Statement, as well as copies of relevant documents including
income tax returns, bank statements, and statements setting out debts
settlement of all issues, the agreement between the spouses will be
reflected in a Separation Agreement that can be finalized after each
spouse has received independent legal advice from his or her own lawyer.
agreements may be entered into at the time of marriage or
cohabitation. Marriage Contracts and Cohabitation Agreements
consider, in advance, how the parties wish to govern their affairs in
the event of a relationship breakdown.
A typical Marriage
Agreement or Cohabitation Contract will, in the event of a breakdown of
the relationship or marriage, provide for:
- how the
parties' property is to be divided;
- whether spousal
support is ever to be payable;
- how jointly
purchased or owned assets are to be divided;
- special credit
either party may receive for specific financial contributions to
major assets, like a family home
- how a
matrimonial home will be treated - e.g. - Will it be sold or
held? How will then proceeds be divided?
as to the exclusion of specific assets from division, such as inherited property,
trust funds and assets, or interests in family trusts.
- in a
remarriage, clarification of a new partners' legal status with
respect to children of previous relationships or marriages who will
reside with the new partner;
- other specific
personal or financial issues of importance to the parties.
All parties must
have independent legal counsel when completing any domestic
agreement. As well, each party will typically be required to
provide complete financial disclosure to the other, to ensure the
solidity of the agreement, and to ensure complete fairness.
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An Uncontested Divorce
A divorce in
Canada may be completed on the grounds of marital breakdown one
year following the date of a couple's separation.
While a divorce proceeding can be commenced in Ontario Superior Court
prior to this date, the Divorce itself may not be finalized until
one year has passed.
A divorce may be
obtained earlier than the one-year anniversary of separation only on the
basis of limited, specific grounds, set out at Section 8(3)(b) of the Divorce
Act, as follows:
the spouse against whom the divorce proceeding is brought has, since
celebration of the marriage,
committed adultery, or
treated the other spouse with physical or mental cruelty of such a
kind as to render intolerable the continued cohabitation of the
Pursuant to Section 3(1) of the Divorce
Act, a court in a province has jurisdiction to hear and determine a
divorce proceeding if either spouse has been ordinarily resident in the
province for at least one year immediately preceding the commencement of
Where a Divorce Application is combined
with claims for other relief (for example, custody, support or property
claims), a Divorce may still be granted after one year of separation,
even if the other claims are not yet resolved. In that case, a
Divorce Judgment may be issued, and the remaining issues will thereafter
be continued in in a corollary relief proceeding.
Where all property, support and
child-related claims are resolved by way of Court Order or Separation
Agreement, a uncontested divorce may be finalized in Ontario through a
reasonably simple process that usually does not require a Court
appearance by either party.
Stages of an Uncontested Divorce
Completion of an uncontested Divorce in
Ontario typically involves these stages:
- Issuance of a Divorce Application at
an Ontario Superior Court branch in the province;
Service of the Application for Divorce
upon a spouse (however, if a joint application is issued, service is
If service is required, a period of
thirty (30) days following service must elapse, without delivery of an
Answer (or formal reply) by the spouse. Where the spouse lives
outside Ontario, the period for response is extended to sixty (60) days;
Upon the expiration of the twenty-day
period following service, a Divorce may be finalized with the filing
a Motion for Divorce with the Court. The documentary materials
required include a draft Divorce Judgment,
affidavit materials, sworn or affirmed, and signed by the person seeking the Divorce, and
pre-addressed, stamped envelopes for ultimate delivery to the parties (or
their lawyers) of the Divorce Judgment;
An original Marriage Certificate must
also be filed with the Court at or prior to this stage. For
those married in Ontario, a copy of a Marriage Certificate may
be obtained online
or in person at any Ontario Registrar-General's office;
Once all documents have been filed
with the Court, they are ultimately read by a Judge, who determines
whether a Divorce may issue, based on these documents. The
time for completion of this step is typically 45 to 60 days, but timeframes can vary from a few weeks to several months, depending on
the Court location and time of year;
Once a Divorce Judgment has been
signed by a Judge, it is returned to the Court office for
processing, microfiching, and ultimately, delivery by mail to the
Divorce Judgments typically take
effect thirty days following the date of a Judge's signature,
although this time-frame may be shortened in urgent situations, such
as pending remarriage, on special application by the party seeking
Once the Divorce has formally taken
effect, the Court will, on further request, issue a final, sealed
document, known as a Certificate of Divorce, which certifies that the Divorce is final and effective. In Ontario,
a Certificate of Divorce must be presented for the purpose of
Other Issues - Uncontested Divorce
- Where there is a child or children of
the marriage, the Judge reviewing the Divorce motion materials is
legally required to satisfy himself or herself that adequate
arrangement has been made between the spouses for the support of the
child. If a Judge has concerns about whether such provision
has been made, the Divorce Judgment may not be granted until
further, satisfactory explanation is provided.
Property claims between spouses may
not be commenced more than two years following the date a Divorce
Judgment is granted. As a result, the issuance of the Divorce
Judgment also "starts the clock" on this two year
limitation period. Following the expiration of this limitation
period, marital property claims are forever statute-barred and
cannot be reopened or pursued. It is essential that any such claims
be pursued by way of Court Application before the two-year period
has lapsed, to prevent the expiration of the limitation period.
Where a Marriage Certificate from
another country is not in English or French, a certified translation
will be required by the court before the Divorce can be completed.
Court Fees - Uncontested Divorces
The following Court
fees are payable in the Superior Court of Justice — Family Court, in
respect of Divorce Applications:
On the filing
of an Application for Divorce
On the filing
of an Answer, other than an answer referred to in item 3
On the filing
of an Answer where the answer includes a request for a Divorce
by a respondent
On the placing
of an Application on the list for hearing
On the issue of
a Certificate with not more than five pages of copies of the
Court document annexed
Legal Fees in Uncontested Divorces
Where an Application for Divorce is wholly
undefended and no complications arise, the typical cost of obtaining an
uncontested Divorce at WISE
is approximately $1,500.00,
inclusive of legal fees, court fees and disbursements (plus applicable
fees associated with obtaining an Uncontested Divorce vary, however,
based on the complexity of each circumstance and the services involved
in completion of the matter. As examples, additional
fees and disbursements may be incurred in uncontested Divorces due to:
- complications arising in regard to
service of documents;
- complications arising due to
administrative or other issues at Court offices;
- additional services required due to issues
presented by the responding spouse or his or her counsel, requiring
action, negotiation, correspondence. meetings or communications;
- correspondence and communications
beyond typical reporting, as may be required in completion of the
- additional services as may be required
where grounds for divorce, other than separation for a period in
excess of one year, are alleged;
- steps taken to expedite finalization
of a Divorce in urgent circumstances
- other steps as may be required due to
complications not ordinarily encountered in completion of
In such circumstances, additional fees
based on our hourly
rates for services rendered will be applicable.
To discuss the steps required in your
circumstances, contact us by telephone at (416) 972-1800 or by email
for an initial consultation without fee or obligation.
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The Information on
this page is © 2004-2007,Garry J. Wise and Wise Law Office. It
is intended for information purposes only and may not be
reproduced without written consent. It is not a
substitute for legal advice and may not be relied on as such.
The reader is expressly advised and cautioned to consult with a
qualified Lawyer for information and advice regarding the
reader's specific circumstances.