A trust deed no one in the family had actually read

The situation

The letter arrived from Pensri's lawyer three weeks into the separation, and it proposed something Somchai had not expected: that Latif, their twenty-six-year-old son who has a significant intellectual disability, be given his own lawyer in the proceeding. Somchai and Pensri had been married for over two decades. He worked as a bookkeeper for a small manufacturing firm; she drove long-haul routes across southern Ontario, often gone four or five nights a week. Their household income sat in the modest range, built around one paid-down mortgage and steady, unglamorous work, the kind of file that rarely involved anything more complicated than dividing a house and a couple of small retirement accounts.

Latif lived with Somchai most of the year, in a semi-supported apartment a short walk from Somchai's house, funded partly through a provincial disability program and partly through family contributions that had never been formally tracked. Both parents agreed, without much argument, that this needed to continue. What they could not agree on was how. Pensri wanted to pay her share directly, in cash, the way she always had when she was home between long hauls, dropping money off or transferring it whenever she thought of it. Somchai worried that direct payments from a separating household, arriving unevenly and without structure, could jeopardize the very benefits Latif depended on if his income or assets crossed a threshold the disability program watched closely. He had read enough, in scattered and worrying ways online, to be frightened of getting this wrong without actually understanding the rules well enough to propose an alternative.

Neither parent had raised the question of independent counsel for Latif before. It came from the other side, in a letter that named a lawyer neither of them had met and asked both parents to consent to Latif being heard separately from either of them, as though he were a third party to his own parents' separation rather than the person the whole disagreement was actually about.

Somchai's first instinct was defensive. He wondered whether Pensri was trying to use a lawyer for Latif as leverage, a way to make her own position about direct payments look more credible. He came to us unsettled less by the proposal itself than by not understanding what it meant for a grown man to have his own lawyer in his parents' separation, or what that lawyer might recommend that neither parent had considered, and worried that agreeing to it might mean losing control of a decision that still felt, to him, like it belonged to the two of them as parents.

Why this was harder than it looked

On paper, this looked like a straightforward parenting and support file: two separating parents, one adult dependant, a disagreement about mechanics rather than substance. In practice it was harder, for two reasons that only became clear once we were inside it, and neither one showed up in the original letter that started the file.

The first was that Latif's own preferences mattered and were not fully known. He could express what he wanted in simple, direct terms when asked, but neither parent had ever actually asked him how he wanted his support handled, partly because they assumed the answer did not matter to the legal outcome and partly, we suspected, because it was easier not to ask. Counsel appointed to represent Latif's interests directly changed that. Because Latif was twenty-six, not a minor, this was not the process either parent might have half-remembered from a friend's custody dispute; no standing office automatically speaks for an adult child as one does for children. Independent counsel was possible because Latif could show her he understood the question well enough to give instructions on it, even though his broader disability meant he could not have managed the file alone. Her role was not to take either parent's side, but to find out what Latif actually understood and wanted, and to bring that into the negotiation in a way a judge or the parents could weigh, rather than leaving it as an assumption either side could quietly override. Had he been unable to instruct her on this specific issue, the file would instead have needed a litigation guardian appointed to act in his stated best interests, since Latif's adult status ruled out the more common route in family cases involving a minor, a referral to the Office of the Children's Lawyer. A parent is not automatically disqualified from acting as litigation guardian, but a parent on the other side of the same dispute, like either of Latif's parents, would usually be unable to take on that role themselves.

The second, and the one that ended up reshaping the whole file, was a document neither Somchai nor Pensri had thought to mention to us or to each other. Somchai's late aunt had set up a modest trust years earlier, naming Latif as beneficiary, with a family friend outside the marriage entirely serving as trustee. Nobody currently in the dispute controlled it, and nobody currently in the dispute had checked what it actually said. Somchai remembered it vaguely as 'something for Latif's future,' a phrase his aunt had used once at a family dinner, and had never asked to see the deed itself. Once Latif's counsel tracked it down through the trustee and had it reviewed, it turned out to already contain mechanisms for exactly the kind of structured, benefit-safe payments both parents had been separately trying to invent from nothing over months of back-and-forth letters.

That put us in an unusual position for a family law file. The dispute was not really about whether Somchai and Pensri could agree on a number; it was about whether either of them knew what already existed and could be used. Bringing the trustee into the conversation, informally at first and then more directly, became as important as anything happening between the two parents themselves, and it was something neither parent's own instincts would have led them to on their own.

What we did

1. Reviewed the request for independent counsel and confirmed it was appropriate rather than tactical, since an unrepresented adult with a disability whose support arrangements were genuinely in dispute had an interest not otherwise being heard by either parent, and we advised Somchai to consent rather than treat the request as an opening move against him, which set a cooperative tone for the rest of the file instead of an adversarial one from the very first exchange of letters.
2. Met with Somchai to map the household's actual finances in detail, including his income, his understanding of Pensri's income, and every current cost of Latif's apartment, support workers, and day program, producing one plain, agreed figure for what ongoing support needed to cover, rather than relying on either parent's rough and sometimes conflicting estimate, which gave the later negotiation a shared starting point instead of two competing sets of numbers.
3. Requested a copy of the trust deed through Latif's counsel once we learned it existed, since Somchai did not hold a copy himself and had never asked his late aunt's estate for one, and had it reviewed by a colleague experienced in disability trusts to confirm exactly what income and payments it could already handle without affecting Latif's benefit eligibility.
4. Opened a direct line with the trustee, a longtime family friend with no stake in the separation, to understand realistically how quickly the trust could begin receiving contributions and disbursing them, which took real pressure off the search for an immediate private arrangement between two parents not agreeing on much else, and confirmed the trust could realistically start disbursing within a matter of weeks rather than months once the paperwork was fully in order.
5. Negotiated with Pensri's counsel over several weeks to redirect both parents' monthly contributions through the trust structure rather than as direct, informal payments to Latif or his landlord, closing the exact benefits risk Somchai had raised at the very first meeting and giving Pensri a structured, workable alternative to the informal cash payments she had originally proposed and preferred all along.
6. Incorporated Latif's own stated preferences, brought forward carefully by his independent counsel after several visits, about which parent's home he wanted to keep visiting on weekends and how often, into the parenting terms so the agreement reflected what he actually wanted rather than what either parent assumed on his behalf, something neither Somchai nor Pensri had directly asked him before independent counsel made a point of doing so.
7. Drafted a written support and parenting agreement naming the trust as the primary funding channel, setting each parent's monthly contribution amount, and building in a yearly review clause so the arrangement could adjust as Latif's needs, his support costs, or the trust's value changed over time, rather than locking both parents into a fixed figure that would inevitably become outdated as circumstances shifted over the years ahead.
8. Confirmed the disability program's rules directly with a benefits specialist before finalizing anything, walking through the specific asset and income thresholds the program applies and how disbursements routed through a properly structured trust are treated differently from cash handed over informally, so the family had outside, independent confirmation, not just our own reading of the trust deed, that the arrangement genuinely protected Latif's ongoing eligibility rather than merely appearing to.
9. Walked Somchai through each draft in plain language before it went to Pensri's counsel, since he had never negotiated a legal document before and wanted to understand every clause rather than simply trust that it was fine, which also meant fewer rounds of revision once the drafts started moving back and forth between the two offices in the weeks that followed.

The outcome

Somchai and Pensri signed a support and parenting agreement that used the existing trust as the backbone of Latif's ongoing care, with both parents contributing modest monthly amounts that the trustee disbursed on a schedule designed to keep Latif's benefit eligibility fully intact. Neither parent had to invent a new financial structure from scratch under pressure, and neither had to simply trust the other with direct, unstructured payments going forward, which removed the source of friction that had stalled their earlier attempts to sort this out on their own.

The independent counsel appointed for Latif turned out not to be an obstacle at all, despite Somchai's early wariness about what her involvement might mean for his own position. Her involvement is what surfaced the trust in the first place, since she asked questions about Latif's existing resources that neither parent had thought to ask themselves, either before or during the separation. Without her, the file likely would have proceeded as a straightforward, and unnecessarily harder, negotiation over cash contributions with no structural protection behind them, and quite possibly with the same benefits risk Somchai had originally worried about left unaddressed.

The agreement also set a yearly review, so as Latif's support needs or the trust's value shift over time, the parents are not locked permanently into a figure set once and never revisited under changed circumstances. Somchai told us afterward that the hardest part of the whole file had never really been the money itself; it was not knowing a better option already existed until someone outside the marriage, appointed specifically to represent his son, was asked to go looking for it on Latif's behalf. Pensri, for her part, said much the same thing at the final signing meeting, and the two of them left on noticeably better terms than the file's opening letter had suggested was possible.

What you can learn from this