We are able to provide this paper commenting on various arbitration cases and written by well-respected Toronto lawyer, Brahm Siegel of the firm Nathan Siegel, LLP, https://www.nathenssiegel.com/Lawyers/ with Brahm’s permission for the benefit of family lawyers attending the Simcoe County Family Law Lawyer’s Association continuing legal education program on June 22, 2018. Brahm is a certified arbitrator, a skilled family law lawyer and a generous contributor to the education of the legal profession. On behalf of our Association, we give our heartfelt thanks to Brahm for allowing us to use this excellent work. It will be available on this blog only until June 30th, 2018 to allow participants in the educational program to make use of it.

Thomas Dart, Partner, Barriston LLP

Siegel-Medarb 2018

 

 

By David Harris-Lowe  – Partner, Family Law

You may hear about lawyers talk to you about legal costs when a court action is started.  This refers to two things – the amount you pay your lawyer for legal representation and also whether one litigant has to pay the other legal costs for the cost of the law suit.  In family law cases, this is governed by Rule 24 of the Family Law Rules.  The idea is simple, whichever party is successful can expect to have some or all of his or her legal costs paid for by the unsuccessful party.  This usually amounts to somewhere between 50% and 80% of the successful party’s legal costs that will be paid for.

A key factor in determining success and the amount of costs payable is whether a party has made an offer to settle and whether the party obtained a result that was more favourable than the offer to settle.  The goal is to encourage litigants to resolve their cases quickly and without legal costs because they know if they don’t accept reasonable offers they might have to pay legal costs.

Take for example a situation where Terry owes Jordan some money.  Terry says it’s $8,000 and Jordan says it’s $10,000.  Terry offers to pay $9,500 because Terry doesn’t want a trial.  Jordan wants it all and doesn’t accept the offer.  They have a trial that lasts a day and Terry pays $5,000 to the lawyer.  After the trial the judge decides that Terry owes Jordan $8,500.  Terry obtained a result that is more favourable than the offer of $9,500.  This means that Jordan owes Terry legal costs.  Depending on when the offer was made, Terry should recover around $3,000 in legal costs.  So, Terry pays Jordan $8,500 minus the $3,000.  Jordan receives $5,500 and pays the lawyer $5,000, leaving $500.00.  Jordan, shouldn’t have been so aggressive.

The decision about when to make an Offer to Settle, now much it should be and how costs rules work in a legal case is extremely important to your case.  It is important to get legal advice from a lawyer who understands these rules and can discuss the risks with you so you can determine what the risks are and what risks you want to take.

By Lindsay Hayes, Articling student

We’ve all seen the posts of an over-sharer on Facebook, Twitter, Instagram, etc., whether it’s

social-media-icons-stacked.pngdisparaging comments about their ex or ‘not safe for work’ photos from a rough weekend. These dirty laundry posts can not only have damaging  consequences, such as being fired or getting arrested ,but can also end up being used as damaging evidence  in a court of Family Law.

A 2012 Harvard University study provided insight into why we share such personal information on social media. The study found through the use of MRI scans that “Self-disclosure was strongly associated with increased activation in brain regions that form the mesolimbic dopamine system”. A secondary study further found that activity in this brain region was increased when sharing thoughts to family and friends, and decreased when thoughts were kept private.

The trouble some Family Court litigants have distinguishing between what is appropriate for a public audience and what should be kept private has proven problematic to as described below.

In a motion for unsupervised access to his child, a father with a history of criminal behaviour posted pictures on Facebook, taken while driving, of his speedometer reading a speed of 100km/hour over the speed limit. The court determined that the father needed to show he could act as responsible adult before unsupervised access would be granted.

In one case a mother’s tweets about phone calls she made while intoxicated and about being hungover were led as evidence by her ex-spouse in a custody battle.

In another case a mother lost custody of her child in the case after images of her dancing on a bar and smoking marijuana were posted on Facebook and used as evidence against her.

The courts have made it clear that as long as social media posts meet the admissibility and relevancy requirements they can be used as documentary evidence. 

The following should not be considered legal advice, but I recommend indulging in a piece of chocolate to release that dopamine rather than airing your dirty laundry on social media for all to see. 

Thomas Dart, Partner, Family Law

How people approach climate change and how people approach family conflict are amazingly similar. Here are some of the similarities:

Climate change Family law disputes
People deny climate change is happening At least one of the parties denies that there is a conflict which needs attention
Those people who accept that climate change is happening do not know what to do about it People in family conflict do not know how to resolve the conflict in a constructive way
Those who deny climate change belittle and denigrate those who accept that it is happening thereby creating more conflict One partner will belittle and denigrate the other thereby increasing the family conflict
Polarization occurs in climate change conflict Polarization occurs in family conflict
Polarization leads to harmful attempts to resolve the conflict such as not so peaceful demonstrations, litigation, resistance to law and order, refusal to accept authority. Polarization leads to hard-fought and intense litigation at the one end and to family violence at the other end. Often, one partner will not accept judicial rulings.
Neither party to this conflict accepts responsibility for the conflict. Neither party to this conflict accepts responsibility for the conflict.
No one tries to find a better way to resolve the conflict. The only way seems to be a “might is right” approach. Marital partners who are separating sometimes prefer to remain in conflict. They do not see the other’s point of view and believe that there perspective to the resolution is the only right approach.
Meanwhile nothing happens to save the climate. Meanwhile nothing happens to save the family from increasing damage. The conflict continues.

There has been so much written about how to constructively resolve family conflict which is unfortunately so often ignored. When it comes to family law, there are two very important pieces which must be addressed. First, is the substantive law which sets out the rights and obligations of each party. The second, and perhaps more important piece, is the process under which the conflict is to be resolved.

If people in family law conflict take the usual approach, they will retain a lawyer who will provide them with the necessary information about the law. Some lawyers believe that the only way to resolve family conflicts is to maintain control over the client file and, more importantly,  the process under which the conflict is to be resolved. They will usually try negotiations with the other side first but if that does not work, they will automatically turn to the courts. It is well-known that once court intervention is invoked, the level of conflict rises rapidly. The more allegations each party makes against each other the higher the conflict rises. Each party continues to try to prove that they are right and that they have been unjustly treated by their partner.  The lawyer seems to fail to understand that each party to a dispute always has their own perspective which is sometimes not based in fact. They do not try to find solutions for the client. More importantly, they do not inform the client of the various methods by which family conflict can be more constructively resolved.

More and more people in conflict have come to the realization that the approach most lawyers advocate, namely  the court process, is very expensive and that it cannot resolve their disputes in a very timely manner. This is through no fault of the court system. Typical of government obligations these days, courts are seriously underfunded and all the people who work in the system are overworked trying to satisfy the demand. People in family conflict are no longer hiring lawyers because they cannot afford to do so. This only causes further delays in the court system because the people in conflict often do not understand the law, know how to follow procedures, lead evidence or properly present their case to the court for a decision. Judges do their best to help but they cannot act as counsel to each of the two parties.

The family law itself is a complex body of rules and regulations which takes years to completely understand and apply to any particular conflict. The court process is governed by The Family Law Rules which themselves are not easily understood and utilized by non-lawyers.

So what can we do. Some of the suggestions which have been provided through many studies in this area and which have yet to be acted upon are summarized as follows.

First, we can try to change the climate under which family conflict operates. Instead of turning first to litigation through the courts, family law lawyers should encourage clients to turn to a good mediator and, if mediation cannot resolve the dispute, then encourage the clients to turn to arbitration. Family law lawyers need to remind people that there are also other good alternate methods for resolving family conflict such as collaborative law and structured negotiations. Lawyers should be trained in each of these processes or at the very least understand how they operate in order to give their clients better options.

Secondly, we can try to simplify family law itself. There may well be a better way to divide up property than to force people to value assets at the date of separation, at the date of the marriage and then to establish if any of the property is not shareable with the other partner. While sharing the wealth accumulated during marriage is a noble objective, the process under which that sharing operates is fraught with difficulty and expense. Trying to find a value for property is a sure method of increasing conflict.

Thirdly, when court becomes necessary, we need to appoint judges to the court who are family law specialists and we need to create a “vertical” system of case management whereby each judge is assigned a number of cases and is responsible to assist in the resolution of those cases all the way through to a trial if necessary. This means that there must be a dedicated family law court which only handles family law matters and which has an independent scheduling process, an independent administration and which lets the judges who sit in the court manage it fully. There is a model for such a court in the Ontario system. We do not have to reinvent the wheel.

Fourth, and by no means final, we need to educate the public and those who find themselves in serious family conflict that there are many resources available to them to teach them how to better resolve their conflicts and with appropriate counselling, many may in fact decide not to separate but to remain together for the betterment of all. This entails creating a climate whereby the first option for families in conflict is to find help, not litigation.

We all have a responsibility to try to save our climate – for the sake of the planet and for the sake of our families. We have an equal responsibility to address family conflict in a much better way.

Timothy Gronfors. Associate, Family Law.

 

As a playful means for highlighting millennials’ preference for spending on luxuries rather

gift house.png

than saving for essentials, a recent BBC article has developed the satirical ‘avocado toast index’.

Using statistics from across the globe, the index calculates how many years it will take to afford a down-payment on a house by merely forgoing a daily ‘smashed avocado-on-toast’ breakfast. And good news Mexico City millennials – your abstinence from avocado toasts will yield you a home in 9 short years!

Leaving aside whatever superfluous financial priorities millennials may (or may not) have, the article does highlight a chilling reality: prospective first-time home buyers are struggling to crack today’s market. For many young couples, this real estate crunch has necessitated a turn to family members for financial assistance.  

But what happens to that financial contribution if the couple separates? Was it intended as a gift or a loan? Is the parent entitled to a repayment? How these questions are answered can have a massive impact on the resulting property distribution.

But let’s take a step back and narrow the parameters. As a starting point, let’s assume that our hypothetical couple, John and Jane, are common law partners (there are very distinct rules on matrimonial homes and property division for married couples).  Let’s further assume that after losing out on a number of bidding wars that resulted in sales above listing price, John and Jane realize that they’ve been priced out of the market and that their pre-approval for a mortgage will not suffice. Thankfully, Jane’s father has come to the rescue; he’s willing to contribute $30,000 towards the down-payment, which will in turn allow the couple to qualify for a larger mortgage.

In an ideal world, Jane and John take their new financing, purchase their dream home, and live  happily ever-after but, unfortunately, Jane and John end up separating five years down the road and are forced to sell the home. Jane subsequently contends that $30,000 from the net sale proceeds should be paid back to her father. John alleges that the $30,000 was a gift to them as a young couple with no strings attached.

The Supreme Court of Canada has established two possible ‘presumptions’ when dealing with such gratuitous transfers (i.e. where a transfer is made without consideration). Unless the transfer is specifically from a parent to their child, the presumption is that the transfer was a bargain rather than a gift, meaning that it must be repaid. In our circumstance, while it was Jane’s father that made the gratuitous payment, Jane was an adult when she received it meaning that the presumption will be that the $30,000 was a loan/bargain. Because presumptions are simply starting points, John will have the onus of proving otherwise and that the $30,000 was a gift.

To add a further wrinkle to our scenario, let’s assume that when John and Jane accepted the $30,000, their bank sent out a commitment letter outlining that as a condition for receiving the funds, all three parties must sign a ‘gift letter’ clearly stating that the $30,000 is not a loan. Later, in the subsequent court battle, John produces this letter as evidence that the $30,000 was intended to be a gift. While the outcome of any one case will depend on all the surrounding facts, in decisions such as Crepeau v Crepeau the courts have found that a bank ‘gift letter’ is insufficient evidence to rebut the presumption of a bargain/loan. As in Crepeau, the finding may well be that such a ‘gift letter’ was executed solely for the purpose of obtaining the mortgage approval with no true intention to gift.

A recent Globe and Mail article by Josh O’Kane pointed out that while slightly more than 1/3 of Canadian millennials now own a home, nearly two-fifths received financial assistance from their parents to do so. Whether it’s from a parent, relative, or friend, home buyers receiving gratuitous transfers can benefit immensely from the assistance of a qualified family lawyer. There are various mechanisms, such as a cohabitation agreement, which can give the parties peace of mind in knowing that their intentions are properly delineated and help avoid a costly court battle down the road.  

 

By Douglas J. Manning, Partner, Certified Specialist in Family Law

There has been some press coverage over the past couple of months about Brad Pitt and Angelina Jolie’s marital breakup and their fight about the children.  However, the amount of coverage has been far less than in a lot of Hollywood divorce cases.

Why is this?

While there have been hints in the gossip media about differences in parenting styles and priorities and the possibility of infidelities (one or more),  statements coming from both parties suggest that they want to make the emotional health and wellbeing of their children the number one priority of the split up process.  They have decided to use an alternative to the public legal system to settle their differences.  Brad, Angelina and their lawyers decided to use a “private court” process so that they can keep control of the process and avoid the sensationalism that often accompanies these Hollywood breakups.

A private court is the same as using an arbitrator to assist disputing parties in resolving their differences.  The process is private in that there are no public court filings (except perhaps the documents that start the divorce and the documents that resolve the issues – but this is not necessary in all cases).

The parties get to choose their “judge” or arbitrator.  If the matter involves sensitive child development issues related to the children’s attachment to each parent or one or more children’s special developmental disabilities, then the parties can select a judge with considerable experience with these topics.  Conversely, if the separation involves complicated financial issues, then the parties and their lawyers can agree on a judge/arbitrator who is comfortable in dealing with these sorts of issues.

The “trial” can proceed in much the same way as a public trial does. The parties can call witnesses who will give evidence and be cross-examined by the lawyers.  Also, the parties can agree to retain the services of experts – such as child psychologists (if the issues involved complicated children’s issues) or certified business valuators (if the issues are financial).  But none of this becomes public and the parties sign a non-disclosure agreement.

Readers may be now thinking – but this “private” court process is just for the rich or famous.  Not true.  The private court or arbitration process can be used to avoid some of the costly and time consuming steps that are required in the public court process.  Also, using your own, private process means that you can schedule the steps in your case as quickly as is necessary to meet your needs for a quick, or not-so-quick, resolution.  You are not handcuffed by the public system that sets the calendar for when judges are available and when cases will be heard.

So before starting down the road of going to the public court system to resolve your family law issues, speak with your lawyer about the advantages and disadvantages of using arbitration or a “private” court process.

By David Harris-Lowe, partner, Family Law

 

Which spouse owns the family home, whether you’re married or in a common law relationship, matters.  The rules around ownership are important and can make a significant difference to how property issues get resolved.  Some rules that are often surprising to people include:

a)      When you get married, ownership of assets, including the matrimonial home matters.  Family law does not change ownership.

b)      If you own the matrimonial home on the date of marriage and on the date of separation, this can result in a significant difference to how much a spouse owes (or is owed) if only one spouse owns a matrimonial home.

c)       Common law couples, even after years of living together, do not have the same rules with regard to property.

d)      Even if you are the legal owner of a home, the other spouse may still be able to claim an ownership interest in the home.

The rules regarding the treatment of family property sometimes lead to surprising results and they do change from time to time.  The idea of a joint family venture has only existed for less than 10 years and significantly changed how a non-owning spouse can claim an interest in family property.

If you are going through a separation, it’s important not to assume what the law says about the division of property, especially the family home.  It is always a good idea to meet with a family law professional to get accurate information.

 Catherine Hyde, Paralegal

“Alternative facts” has now become a new catch phrase. What is an alternative fact? My take on it is that if I am doing the telling I believe my statement to be a plausible alternative to the truth. The question is, if it is an alternative to the truth is it in fact a lie?

In a matrimonial matter there are two parties and for ease of reference we will refer to them as “husband” and “wife” although they may be of same sex or living common law and deemed partners.

The husband sees the couch as “blue”. The wife sees the couch as “grey”. Is one of them stating an alternative fact?  It may be that one of them is colour blind and they truly see the couch as the specific colour they have stated.  That is their truth.

What if the wife states that the husband never helped with the children?  He worked long hours and was never available to help with the meals, bedtime routine etc. The husband states that he worked long hours but always ensured that he was home at dinner time to help out with the children’s homework and bedtime routine and then would do some work at home.  Who is stating the truth? Who is stating an alternative fact? Perhaps they are both stating the truth. It is their perceived truth. When one is hurting they may see things in a certain perspective that may or may not be entirely true. Having started court proceedings they are trying to make their case that they are the better parent. This may skew their vision.

It is important for your lawyer to be able to get to the truth and determine if perhaps there is a different side to the story. One should be careful of utilizing terms such as “never” and “always”. If you have chosen to tell your lawyer an alternative fact, that is, a fact skewed in your favour over the truth, your lawyer is not going to be able to help you sort out your issues. It is best to look at the overall picture and be as truthful as you can.  It takes two usually to bring the situation to the crisis point where you have sought to proceed by way of Court. Both of you will have your “side of the story” but so long as you do not rely on alternative facts and simply rely on the truth, your lawyer will be able to help you in an efficient and less time consuming manner. If your lawyer has to dig through the alternative facts to get to the truth, this will prolong matters and be costly to you.

Take a big breath, look at your situation in an impartial, non-emotional manner and provide your lawyer with the true facts.

By Douglas J. Manning, Partner, Certified Specialist in Family Law

Yes!  But why would you want to?

In a recent British Columbia court decision, one of the issues was whether the husband and the wife had entered into an oral marriage contract that excluded the sharing of the wife’s rental property from being shared in the parties division of property when they separated.

Both parties had come from previous marriage-like relationships. The wife owned 2 properties coming into this marriage.  The value of one of the properties increased by about $500,000 during the 3 year marriage.  The parties never occupied the property during the marriage and they never shared the rental income. The husband never paid any of the expenses associated with the property.

The wife’s evidence was that the parties had a verbal contract that the husband would not have any interest in the property, nor would the value of the property or any increase in the value be included in what the wife would have to account for in the sharing of the parties’ net worth.

The husband maintained that they had talked about putting his name on title to the property and therefore he would have been a joint owner and thus the intention was to share the asset and the increase in the value over the marriage should be included in the mix of the property to be shared.

The wife gave evidence that each party agreed to be responsible for their own expenses and pay their own debts and not look to the other for assistance.  The evidence showed that they more or less were responsible for their own individual expenses, never had a joint bank account and each was financially responsible for their own children from their prior relationships. However, the parties did share their living expenses together, including the costs of vacations, etc..

The issue was largely one of credibility. Who did the judge believe?  On balance the court preferred the wife’s evidence as it was more consistent with how the parties conducted themselves.  They had very little integration of their financial matters and this supported the wife’s contention that there was no mutual intention to share the value of her pre-marriage rental property or the increase in its value.

Of course all of this could have been avoided had the parties decided to have a written marriage contract that clearly set out their expectations, rights and obligations.  If you are going into a new relationship and have considerable assets or there is a significant difference in your incomes, it would be wise to consider the use of a cohabitation agreement or marriage contract.

Thomas Dart, Partner.

Around the world, in so many countries, we are witnessing the conflict which is created by the political party system.  We pride ourselves on our democracy. Yet, many of us feel it is not working. No party seems to be able to fix the many problems currently facing us. Poverty, climate change, gross income inequality, all are dealt with differently by each political party.  Some parties recognize it and propose solutions. Other parties ignore, don’t understand, or are ignorant about the problems.  One party pits itself against the other in an adversarial bombastic battle in which, now, all rules of normal civility are tossed in the dirt. Leaders distort reality in order to win power. Each party ruthlessly attacks the other’s leaders and party members as if their opponents were the epitome of evil. The “Leaders” unfortunately provide an example which many in society begin to follow. Whether it be England leaving the European Union, or the US electing a President more than half the people of their country did not want, the adversarial nature of party politics is not making the world a better, safer, place.  It creates “winners” and “losers” – more division.  It does not make society whole.

In families, when conflict erupts, the same type of “political system”, on a microcosmic scale, also can kick in. Conflicts over finances, communication, children, intimacy – all tend to become ‘adversarial’. One “party”, in an effort to persuade or take control, begins to demean the other – “you always do that – you never do this!”  The defensive party then, for protection, attacks back – “you never do this and you always do that!”  The conflict escalates. If it goes on long enough, the “parties” may find themselves at war in the adversarial system we call the Family Court. 

What if there were no political parties? What if we were able to elect our own chosen representatives to actually represent us and not their chosen political party? What if that representative could actually represent the interests and goals of our own community, without having to tow the party line? What if all the representatives of all our communities had to get together and figure out a way to address the interests and goals of all the communities: our city, our town, our province or our country? What if rules were set up which prohibited engagement in an adversarial battle and required the representatives to actually work together to understand and give priority to the interests of each community? They might actually find that there are common interests and common goals in each community which can be appropriately addressed without someone winning and someone losing.

What if, in our families, when conflict arose, instead of becoming adversarial, we asked why? Why are you so upset? What if we kept probing to find the source of the conflict – its root cause? When we see our partner verbally attacking us, instead of assuming we are the actual focus of the attack, we might find, if we ask, that the real focus is their own fear – fear of appearing inadequate, or perhaps of losing their job, or perhaps of being unloved. We might then respond very differently, once we understood.  How many times have you started an argument only to find at the end, that there was far more to the conflict than, for example, just not doing your chores around the house? Were you able to get to the bottom of the conflict? If you were, you probably ended up, once the conflict was behind you, in a loving embrace, with true understanding and true forgiveness cementing your relationship once again. You also probably learned something about each other from the conflict and you probably learned that your decision to try and find the root of the conflict made you both better people, because you were able to gain greater understanding, greater empathy.

The governing of our nation and the governing of our family relationships should not be adversarial sports – can we find a way to eliminate this growing and rather frightening trend from our governments and from our families?