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.

 

Barrie Hayes, Partner, Family Law

The Family Law Act provides a statutory framework for the equalization of family property upon separation. The framework essentially exits out from the equalization the value of property the spouses owned on the date of marriage, and any property the spouses received from third parties; inheritances, life insurance policies, and certain civil judgments during the marriage.

The spouses deduct, from the value of their respective family assets at date of separation, any outstanding debt which then produces the spouses’ respective net family properties. In the event that one spouse has  net family property which is greater than the other spouse’s net family property, the spouse with the higher net family property owes a monetary payment to the other spouse equal to one half of the difference in the two net family properties.

This statutory framework provides a fairly focused, straightforward system for settling property issues between separating spouses.

Unfortunately the legislation only applies to legally married spouses. Common-law spouses have no recognition under the Family Law Act for property equalization.

Common-law spouses, in pursuing property issues arising from separation, have to resort to the common-law principle of unjust enrichment. Unjust enrichment will provide monetary relief to a common-law spouse if the common-law spouse can demonstrate that, through either financial or labour contributions made by the spouse, the other spouse was enriched by such contributions. The spouse pursuing unjust enrichment also has also to demonstrate that he/she suffered a deprivation by virtue of the contributions, and further that there was no legal reason justifying the contributions to the other spouse.

Cases dealing with unjust enrichment have increasingly recognized the claim and have broadened its application to common-law spouses.

The Supreme Court of Canada has recently advanced the unjust enrichment principle in creating the concept of a joint family venture in common law relationships. If a common-law relationship is determined to be a joint family venture, the law of unjust enrichment will compensate the contributing common-law spouse for the difference in the increase in assets between the two common-law spouses from the date of commencement of cohabitation until the date of separation.

Although the unjust enrichment principle greatly assists in providing fairness in dealing with property issues between separating common-law spouses, it lacks the precision and certainty provided by the Family Law Act to legal married spouses.

Other provinces in Canada have passed legislation which gives common-law spouses the same statutory property equalization rights as legal married spouses. Hopefully, over time, Ontario common-law spouses will be afforded the same statutory property entitlement.

Catherine Hyde, Paralegal

It’s tax time and hopefully you have filed your tax return.  You obtained copies of your T4s, T5s, receipts for medical or children’s expenses, business or rental income information. You provided these to your accountant or perhaps prepared your own tax return, and once done, received the Notice of Assessment confirming that you did your taxes correctly. 

 Preparing your taxes and preparing a financial statement in a separation case are similar.  In both instances you must gather together your supporting documents to prove any credits or deductions that you are entitled to within specific timelines. An effective and cost saving measure is to create a filing system.  This is not a doomsday philosophy in the event you do separate later, but rather it is simply a good practice, to assist in preparing your taxes, and to assist in any future needs you may have whether separation or estate planning.

You have essentially two options.  Firstly, you can obtain the standard filing cabinet, create paper files for each category including income, bank statements, credit card statements, investment statements, wills, property purchase and sale records, details of inheritances. Alternatively, in this digital age, you can set up an on-line filing cabinet with the same ability to set up folders for each of the categories and scanning the physical documents to each of the digital folders. These records should be maintained on a monthly basis.

 A little time now on filing can save you a world of time later.  Happy filing!

David Harris-Lowe, Partner, Family Law

36 days in trial after two years in the court system.  $500,000.00 in legal fees, with one party owing the other almost $200,000.00 as part of those legal costs.  This was only part of the fallout recently after two parents were unable to agree to a custody and access arrangement relating to their seven year old daughter.  This case attracted significant media attention not just because of the large sums of time and money expended, but also because of the harm that can be caused to children from marriage breakdown.

The parties’ daughter was anxious and agitated because she was worried about one of her parents getting mad because her tooth fell out while seeing the other parent.  Their daughter was told bad things will happen when she’s visiting the other parent or that the other parent didn’t love her.  The judge wrote – “What will it take to convince angry parents that nasty and aggressive litigation never turns out well?”  He also said that “no matter how hard we try, we don’t seem to be getting the message out to separating parents”:

a)   Nasty doesn’t work.

b)   Withholding the child doesn’t work.

c)    Sarcastic emails don’t work.

d)   Bad-mouthing the other parent doesn’t work.

e)   Twisting the child’s life to create a new status quo doesn’t work.

f)    Selfish decisions which may be emotionally satisfying in the short term, never look good in        a courtroom.

Cases like this should cause participants in the family law justice system to pause and reflect on how we approach these types of cases.  However, my experience is that the reality is most lawyers actually do encourage reasonableness and settlement. 

If you are, or feel you are about to go down the road to a ‘high conflict’ separation then the following are useful suggestions:

a) Get help.  Retain a lawyer.  See a counsellor.  Bounce ideas off a friend who is prepared to        tell you you’re taking the wrong approach.

b)    Don’t have parental discussions in front of the children.

c)    If you can’t have a discussion with the other parent without arguments and put downs,              then establish a process so that you can have discussions in a way that avoids this.

d)    Just because the other parent says mean or hurtful things, doesn’t mean you have to                  respond in kind. 

e)    Ask yourself, what would a judge think about my communication and actions?

f)     Take care of yourself.

Hiring good professionals in high conflict cases is important.  They will be honest with you in giving advice, even if you don’t always want to hear their advice.  A good lawyer can guide you through the system and, if needed, advocate for you in an effective and efficient way.

Thomas Dart, Partner, Family Law

When a family unit starts to breakdown, the financial ramifications are already hard enough to handle without throwing into the mix the cost of the professional services required to finalize the parenting, property, support and a myriad of other issues. The wedding may have cost $50,000 but the divorce can cost far more than that if both parties feel like ‘fighting’ with each other. 

We have addressed the ways you can keep your legal costs down in other blog articles – for example, doing the work yourself with the help of a mediator. But what if your ex-partner won’t go to a mediator and you have to get some legal help. One answer is to seek out a law firm which will offer “limited scope retainers”. Here’s what that means.

If you need information about any aspect of your separation or taking your case to court on your own, you can try to find all the information you need on the internet.  Unfortunately, that information won’t be specific to your case and you will miss a lot of information because family law is governed by precedent court decisions, which are not easy to find and not easy to interpret. It is a lot less time consuming and a lot more cost effective to present your case to a lawyer and get his or her opinion on your case. But you may not have the money or the budget to hire the lawyer for all of the issues which you are facing. So what can you do?

Well, there is an answer. You can hire the lawyer for one specific task or as many tasks as you wish. Thanks to recent changes to the Rules which govern lawyers’ professional obligations, lawyers can now offer services for a limited purpose. If you have to take your ex to court, you can represent yourself but, as you need it, you can along the way get a lawyer’s help to:

  • Give a legal opinion about your specific case;
  • draft your court documents,
  • give advice as to what is required for financial disclosure both as to what you should give and what you should get,
  • assist you in gathering that information for court,
  • help you prepare your presentation to the court, including providing you with precedent court decisions on any specific issue,
  • help you understand rules of evidence and court room procedure,
  • provide coaching assistance for negotiations with your ex;
  • if you feel uncomfortable about going to court on your own, you can hire the lawyer for one specific court appearance and no others;
  • steer you to resources such as valuation professionals, psychologists for parenting assessments, counselors, and other experts who you may need for your case.

In short, you can hire the lawyer on an ‘as needed basis’, thereby limiting your fees to your budget.

If you choose to go that route, the lawyer will want you to sign what is called a limited scope retainer agreement so that he or she knows just what it is you are retaining him or her to do. There will also probably be a request for money up front to cover the work but the lawyer will be able to give you a pretty good estimate of what the assigned task will cost. So you probably won’t be asked for any more money, unless you want to obtain more services. You may be obliged to sign more than one agreement if you want more services as you go.

Some cases are too complex to be managed effectively by a limited scope retainer and the lawyer will let you know  if that’s the case. But a large number of cases can be managed appropriately on this type of a retainer. Yours may well be one.

Jodi Armstrong, Partner, Family Law

There are certainly some similarities between a mediation report and a separation agreement: both documents outline agreed upon terms and both, at least appear, to have an air of finality about them.  Why then, once parties have gone through the mediation process and have received a final report setting out their agreement, are they still being strongly advised to take the next step and enter into a separation agreement? 

The answer is simple: the mediation report is not a legally binding contract.

Many, but not all, mediators are also lawyers.  When a lawyer is acting as a family mediator, however, he or she does not provide legal advice to either party.  The lawyer/mediator can provide useful legal information but, while mediating a family dispute, he or she is acting as a neutral third party and is attempting to assist  separated spouses with reaching a meeting of the minds in relation to their various family law issues.  Once the parties have come to an agreement, the mediator will prepare a mediation report outlining the particulars of that agreement and will direct the parties to take the report to their respective lawyers for independent legal advice.

Once the mediation report is in the hands of the lawyers, the parties will have the opportunity to discuss the terms and to get advice with respect to whether the mediated agreement is consistent with their rights and obligations under the current law.  Assuming that, with that legal advice, the parties are still in agreement, the lawyer will draft a separation agreement with appropriate releases.   The separation agreement must be (1) in writing; (2) signed by the parties; and (3) witnessed – at which point, it is a legally binding contract.

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.

Evelyn Thompson, Family Law Clerk

 

All of us knows a personality like the one whom Mr. Trump is trying to portray in his run-up to the Presidency. (I am ever hopeful he is not the person who he pretends to be). Experienced family law lawyers have seen many like him. I am also sure that some of us may have experienced adonald-trump.jpgrelationship breakdown with someone like him.

Strong, unyielding, biased and opinionated personalities are not only difficult spouses but they are also difficult personalities for judges, family lawyers (even their own lawyer), family mediators and arbitrators. They won’t do what they are told to do. They won’t “play fair”. They play only by their own rules. They hide assets; intentionally hide income and will do whatever is necessary to avoid giving their partner that to which they are entitled.

The family law Donald is sure about what is right. He will do what he thinks he has to do, come hell or high water. Even Judges don’t have much persuasive power over someone like him. They can make orders, they can award costs, they can order him to pay, but will he? Will he accept accountability for his actions? – Not very likely or very easily.

Personalities like that increase costs for everyone at every level: emotionally, financially and spiritually. A spouse who will stand up to them risks a great deal – they have to retain additional experts at huge expense, they worry about whether or not these experts will actually find any of the missing assets or income, they worry about going bankrupt in the course of following their lawyer’s advice.

Mediators may be asked to become involved in family disputes by the Donalds of the world because they think the confidentiality of the mediation process and the power they hold over their partner will win the day. They are sure that they can browbeat the mediator and the other side into doing what they want. Mediators have to figure that out soon and terminate the mediation as quickly and as safely as possible.

Only Courts have enough authority to deal with the Donald like personality. So we have to leave it to the court to hold someone like him accountable. Indeed, the Donalds of this world can be held accountable, just like an election may hold Donald Trump accountable. A Judge in a family law case does have the power to jail them if they continuously flout court orders. But the court won’t do that on its own. Courts can only act if the weaker party takes a stand and asks the court to hold him accountable.  When you have been beaten down in a spousal relationship, it is very hard to find the emotional and financial resources as well as the courage and the strength to stand up for what is right. When they do, they need a Judge who is willing to listen carefully to what is going on in the case, who can understand the nuances of a relationship involving the Donald like personality and who has the courage to make the Order holding him accountable.

We up in the North Country hope that the American electorate has the willingness to listen carefully to the relationship Mr. Trump wants to establish among the American people, to understand the nuances of what Mr. Trump brings to the stage and then has the courage to stand up and hold him accountable. Thankfully for us northerners, Iowa is a promising start!