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.

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

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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

The Chicago Cubs have not won a World Series since 1908 and have not appeared in a World Series since 1945 (when they lost to the Detroit Tigers)

But now, with the Cubs in the World Series, tickets to the 3 games in Chicago are the hottest commodity available.  I heard the average re-sale ticket price was over $3,000 for a single seat!

As you can imagine with a very limited time supply and a huge demand, people were going nuts to try and get a ticket.  I don’t think even President Obama could get a ticket and he is from Chicago!

And now for the “interesting” family law questions about those season tickets.

So with a married couple in Chicago separating and both spouses being huge Cubs fans there was the inevitable debate over who is getting the tickets to the one game they had tickets for?

The wife filed an emergency petition seeking to get the tickets.

The husband was able to get the tickets because he had purchased a ticket package deal for the season with some friends before the separation.

In this case the judge ruled that the husband gets to keep these tickets so long as he took their 12 year old son to the game and the husband was ordered to purchase a ticket for the wife in a comparable seating area.  With tickets going for around $3,000 on StubHub that will be a very expensive game for this couple to attend.

In trying to convince the judge that this was an “emergency” that required immediate court intervention, the wife argued that it would be extremely unlikely that the Cubs will reach the World Series again in her lifetime given that they haven’t been in the Series in 71 years.  The husband’s lawyer relied on the old adage  “Hope Springs Eternal” to argue that there is a greater likelihood that the Cubbies will be back sooner rather than later.

Thomas Dart, Partner, Family Law

We have all experienced the breakdown of a relationship whether it is our own or whether it is the relationship of people we know and love. The traditional way of handling the breakdown is to have each party go to a lawyer, obtain legal advice about their rights and obligations and then have the lawyers try to negotiate an agreement. If an agreement cannot be reached, one of the parties begins a court application and then “the fight” really begins – and the expenses rise. The already bad relationship only gets worse. Children are directly affected by the conflict. Everyone loses – even the lawyers because they can’t get paid for all the time required to solve the problems in the court system and the court system itself because it can’t manage all the cases that pour through the doors.

The parties to the court proceeding are really handing over the power of solving their problems to professionals: to their respective lawyers, and to the judge who ultimately must decide their future for them. Is there a way to help people solve their own problems and reduce the animosity and harm which the adversarial nature of the court proceedings create? Fortunately, yes there is.

A competent and certified family mediator who knows the law and, more importantly, the impact of separation on children can aid separating parties in many ways. The mediator can provide all the information the parties need to make informed decisions which will impact them for the rest of their lives. The mediator can assist them in opening up discussion around the problems they are facing so that they can seek and find mutually acceptable solutions. The mediator can also help by obtaining any necessary therapists, coaches, valuation experts and any other expert who might assist them in reaching an agreement.  If the mediator successfully assists the parties in reaching an agreement, the mediator will prepare a memorandum of the agreement. The mediator cannot draft the actual legal agreement which the parties must sign to complete the process. The mediator must refer them to independent legal counsel who will prepare their actual legal agreement for them. This is to make sure that the parties obtain appropriate legal advice before signing the agreement so that they can be assured that they have made the right decisions. This provides a safeguard for anything that might have been overlooked in the mediation. If the lawyers come up with a reason why the agreement reached in mediation should not be completed, the parties can then return to the mediator with their lawyers to work out another solution.

In other words, the parties themselves can take control and through the mediation process can learn all they need to know to make well-informed and good decisions which are mutually beneficial and protect the children from any conflict. In the mediation process, the parties do all the work under the direction of the mediator. With all the work completed under proper supervision, the lawyer’s job in drafting the agreement then becomes much easier and therefore much less expensive. Parties who can mediate a settlement pay much less then parties who turn over the decision-making power to others.

Mediation may not work if one of the parties suffers from a mental health problem or if there is serious domestic violence but it can work for the vast majority of people who separate. Anyone who wants to learn more about mediation and other ways of resolving problems arising from separation should visit the following websites: www.fdrio.ca or www.fmc.ca.

Barriston also offers mediation in the form of Barriston Resolution Services. Take a look at our website for more information.

 

Catherine Hyde, Paralegal

In recent years there has been an increase in separation of couples in the 55+ category.  It seems once the children have left and you start to notice an increase in the people you know in the obituaries, you ask yourself- is this all there is?  Thoughts of separation seep in.  Before saying you want to separate, consider some financial aspects of separation and possible lifestyle changes.

First make a list of what property you own including realty, bank accounts, investments and what debts you have.  Make a similar list for the assets and debts of your spouse.  Look at what your retirement income might be from private pensions and government pensions.   Armed with this information, make an appointment with a family law lawyer.  The lawyer should be able to provide advice on a broad basis as to what your entitlements might be on a property division and whether spousal support is a possibility, for whom, and in what quantum and duration.  All of this is subject to actual financial disclosure. 

Having all the facts you can weigh whether going it on your own is feasible.  The emotional issues and the financial reality must come together in making your decision. Counselling might be the answer for you. Attempting new things outside of your comfort zone might bring back the spark.  If not, and separation is the route, ensure you follow through with your lawyer to enter into a separation agreement that ensures you achieve an equitable settlement.  

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

There certainly has been a lot of media attention and commentary about the process and evidence in the criminal trial involving media personality Jian Ghomeshi.  But I am not writing about whether the alleged victims were treated fairly or whether the scope of the evidence was too broad or too narrow.  Rather, I was struck by how much evidence there was from Emails and other forms of electronic communications between the alleged victims and the accused and how that evidence was used in the trial.

If I recall correctly, Mr. Ghomeshi’s defense team was able to put their hands on numerous Emails going back over 10 years (as well as more recent emails and texts over the past couple of years between the complaints and Mr. Ghomeshi and others).  I was struck by how effective this bundle of evidence was, at least in the court of public opinion and in the media reports.

I immediately drew parallels in my mind to how relevant and effective this type of evidence has been, and could be, in a family law matter where history and credibility might be at issue.  Let’s consider an example.   In a child custody case, one parent might raised the issue that the other parent has been disinterested in the children for years and has never “pulled their weight” in terms of the day to day tasks that parents are required to perform for their children.  Yet there might be a string of Emails over the years from the complaining parent to the other parent, or other friends or relatives singing the praises of the other parent as a caring, committed, involved and child-focused parent.  Sort of a “parent of the year” characterization.  Or some of the emails may just be coordinating tasks for the children between parents – who is taking the children to appointments, their extracurricular activities, shopping, etc.

If the parent being accused of non-involvement has kept those Emails, or can get those Emails, from the internet provider, then he or she can make good use of this “evidence” to poke holes in the picture the complaining parent is trying to paint and, in doing so, this might have a side-effect of diminishing the credibility of the complaining parent.

Over the past 15 years or so of practicing family law I have developed the habit of advising clients to be very careful of what they put out there on the internet, whether it be Emails, Facebook post, Instagram messages etc.  Once it is “out there”, it is very hard (impossible) to get it back.

A word to the wise.

David Harris-Lowe, Partner, Family Law

Going through a separation or divorce is often a really challenging experience. It can be legally complex, emotionally challenging, and financially draining. You’re under pressure and it’s tempting to cut corners by handling the separation and divorce without the assistance of a lawyer. Too often this leads to bad Agreements which aren’t enforceable.

A good family law lawyer can help in several ways. Obviously, lawyers should know the law and be able to apply the law to your particular situation. This means knowing more than just basic family law. Your lawyer also needs to be informed about tax law, insurance law and trust law to name a few. But it’s more than that. Your lawyer can also help you in the following ways:

  • Identify what your interests are and will work with you to develop a realistic plan to achieve them.
  • Act as a trusted advisor. This means letting you know what your rights are and assisting you in seeing beyond the immediate problems of a divorce or separation.
  • Are about you and your situation, but not to the point that it interferes with good judgement and advice.
  • Be able to follow through with negotiations, mediation, arbitration or litigation as needed. This means knowing how to negotiate and, if needed, how to gather up and present evidence in a compelling way.
  • Handle the mechanics of writing an enforceable and lasting agreement.

If you or someone you know is going through a separation or divorce, it’s usually a smart idea to speak with a lawyer early in the process.

Thomas Dart, Partner, Family Law

We are in the midst of an Ontario election. The campaigns of the three leading parties can only best be described as adversarial. As voters, we should ask: Is the adversarial nature of the campaign helpful to the governance of Ontario? I think most of us would answer most emphatically in the negative.

We have numerous problems in Ontario mostly caused by a declining economy. Is the best method of solving these problems competition between adversaries? What if the three parties got together and collaborated – throwing their resources and obvious intellect at finding a common solution to these problems? What if they involved some grassroots members of our society? In other words, can we change the cultural norm where we automatically think that the adversarial system will lead us to a positive solution?

Similarly, in the family law field, many more professionals who are involved in assisting families with relationship breakdowns are beginning to seriously question the adversarial system as the best method to resolve family law problems. In fact, for many years now, family law lawyers have been using non-adversarial approaches to the resolution of family law disputes. Governments are also beginning to shift family justice resources toward mediation services.

In April, 2013, the National Action Committee on Access to Justice in Civil and Family Matters noted in its report that, its “vision of a family justice system and the recommendations for change” should be based on several guiding principles[1]:

  • minimize conflict – programs services and procedures should be designed to minimize conflict and its negative impact on children.
  • Collaboration – program services and procedures should encourage collaboration and consensual dispute resolution should be at the center of the family justice system provided that judicial intervention is readily available when needed
  • client centered – the family justice system should be designed for and around the needs of the families that use it
  • empowered families – families should, to the extent possible, be empowered to assume responsibility for their own outcomes
  • integrated multidisciplinary services – services to families going through separation and divorce should be coordinated, integrated and multidisciplinary
  • early resolution – information and services should be available early so people can resolve their problems as quickly as possible
  • voice, fairness and safety – people with family justice problems should have the opportunity to be heard and receive the services and processes that are respectful, fair and safe
  • accessible – the family justice system has to be affordable, understandable and timely
  • proportional – processes and services should be proportional to the interests of any child affected, the importance of the issues and the complexity of the case

Family breakdown affects most of us in one way or another over the course of our lifetime. Those of us who have never separated certainly know a good friend or close relative who has experienced a relationship breakdown and we have witnessed firsthand the suffering which it can cause. When we recognize that 40% of marriages break down, we can assume that probably another 30% of the population experiences the repercussions. Grandparents lose rights to see their grandchildren, for example. The divorce breakdown rate does not take into account the number of common law relationships that fail as there is no means to track those. So the information we have regarding the percentage of families who actually experience family breakdown is probably low. We all know as well that children suffer the most when their parents separate.  Family breakdown impacts so many other aspects of our society – it can create physical and mental health issues, job loss, engender criminal conduct and so on.

There are several groups, consisting of lawyers, mental health professionals and judges, at work trying to convince government that these issues should be an essential part of the current Ontario election platforms of all parties. One group wrote a letter to all three political parties asking them to put this on their agenda.  Other groups are meeting with government and among themselves to strategize implementation of the reforms. The Liberal party has at least put the issue on their platform – but it is not getting much publicity. It was not even mentioned in the recent debate. In any case, the parties should not make this yet another adversarial issue – all three parties should adopt this platform – no more studies are needed – action is required now.

A collaborative effort for reform among the leaders of our Province would signal to our families who are suffering that they can set aside adversarial differences in the interests of improving their lives. That signal would perhaps begin that major shift in culture which our National Action Committee has so strongly endorsed. Who will speak for our families? Who will help them? Where is our leadership?

 


[1] Meaningful Change, Beyond Wise Words, April 2013, pp. 3-4

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

Being a trendy sort of guy, (and a family law lawyer to boot) I was intrigued in reading about the much publicized recent break up of movie star Gwyneth Paltrow and Coldplay frontman Chris Martin.

They are not calling it a ’separation‘ or a ’divorce‘ however , they are referring to their situation as a “conscious uncoupling”.  Is this just an attempt at rebranding or is it a revolutionary new way of ending a relationship?  Never having heard this phrase before, I was curious, so I decided to ’google‘ and see what came up.  Interesting, very interesting.

Experienced family law lawyers have a variety of skills to assist couples in resolving the legal issues arising from their separation, through the use of negotiations, mediation, arbitration, and litigation (as a last resort).  However lawyers are poorly equipped to assist clients in resolving the emotional, psychological and even spiritual stresses they inevitably deal with during the journey of separation.

This emotional, psychological, and spiritual journey, which I am now calling “conscious uncoupling” (being the trendy guy that I am) would appear to require a much deeper understanding of oneself and the part that each partner plays in the relationship and the reasons why it did not work out.  Each partner is required to undertake an introspective analysis of the role that they played in the dissolution of the relationship.  This seems like a pretty enlightened perspective, seeing most divorcing couples seem to spend a great deal of time and energy in the ’blame game’.

Each of us choose our partners for very different, and often unconscious reasons.  We may be attracted to a person with traits that we lack, or that are opposite to ours.  The regimented individual may be attracted to a spontaneous person who acts capriciously.  Eventually this may wear thin and become a source of conflict during the relationship.  By looking within ourselves we may find more meaningful “truths” that may be uncomfortable for some of us.  Sort of like looking in a mirror that points out the blemishes that we would rather not see.

Apparently the therapist who coined the term “conscious uncoupling” is U.S. therapist Katherine Woodward Thomas who has developed a 5 week program to assist couples who wish to take this more enlightened approach to ending the psychological, emotional and spiritual aspects of their relationship.

In my law practice, I often recommend to clients that they seek counselling assistance to support them on the emotional journey they experience in their separation.  The range of emotions can go from denial, to anger,  rage, acceptance and every emotion in between.  This new and seemingly helpful approach of “conscious uncoupling” may become another facet of support I suggest to clients.