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 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. 

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

Yes!  But why would you want to?

While not exactly bigamy, it is possible to have more than one spouse at the same time.  If you are separated from your spouse to whom you are still married, you are still legal spouses in the eyes of the law. This has several consequences:

  1. You are not free to re-marry;
  2. In the event of your death, your separated spouse will be entitled to widow/widower survivor benefits within the Canada Pension Plan;
  3. If you have not changed your Will, then your spouse may still be entitled to receive whatever you left them in your Will even though you are separated.

You could also have a “common law” spouse at the same time as having a married spouse.  If you have cohabited continuously for at least 3 years with another person (of the opposite or same sex) then this person could be your spouse as well!

So what?

Well, in the event of a separation after 3 years of cohabitation, you could have a spousal support obligation to this person, as well as having a spousal support obligation to your married spouse. Isn’t that a kicker!

Also, having 2 spouses at the same time could create complications for your extended health insurer.  The vast majority of employee health insurance plans provide prescription, dental, eyeglass coverage to the employee and to their “spouse”.  But most plans will not cover 2 spouses at the same time.  This could increase the cost to the insurer significantly so most insurers limit eligibility to one spouse at a time please.

Also, having more than one spouse at the same time could create confusion for life insurance companies.  If a separated but still legally married spouse has a life insurance policy on their life that they are required to maintain because they have a support obligation to their married spouse and/or children of the marriage and at the same time the insured has a common law spouse with whom they have had children and the insured dies, then there is the very real possibility that you will have 2 surviving spouses fighting over the insurance proceeds.  The insurance company won’t know who to pay the policy proceeds to.  Undoubtedly this type of situation will end up in litigation with the money being tied up for years.

So, if you are considering diving into the pool of committed relationships after coming out of a separation in which not all of the loose ends have been tied up, you would be well-advised to get some legal advice first.  Love may be blind, but as we all know – it ain’t cheap!

David Harris-Lowe

Associate, Family Law

The ending of a marriage or common law relationship is incredibly stressful.  You worry about your kids, house, income, savings all while you may be experiencing significant conflict.  The decision to separate and the decisions immediately after separation often have lifelong impacts on you, your spouse and your children.  Most people want an ‘amicable separation’ but accomplishing that is easier said than done but you can do it if you::

  • Look after yourself.  Make sure you get exercise, eat well and avoid unhealthy habits.
  • Be calm.  Divorce invites conflict, which poisons relationships that need to be maintained.  Kids need their parents and need parents that find a way to cooperate – even though they don’t really feel like it.
  • Be safe.  If there has been or may be violence then you need a safety plan.
  • Educate yourself.  Get as much information as you can – but make sure it’s reliable.
  • Understand your finances.  Meet with your financial advisor and gather up financial documents, such as tax returns, bank statements, RRSPs, life insurance, debts.
  • Get help.  You are not alone.  There are plenty of good counsellors, parent coaches, mediators and family law lawyers to give good advice.  It’s also important to rely on family, friends, church members or other social groups.
  • Meet with a lawyer.  A family law lawyer can tell you about your rights and responsibilities and will be able to help you to the end of the process.  Seeing a lawyer early in the process will often save you money and stress.

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

Increasingly over the past 10-15 years the courts have been inundated with family law cases.  This has caused a considerable backlog of court cases, generating needless delay and expense for separating couples attempting to resolve their family law issues (child custody, child support, spousal support, property division, ownership & occupation of the matrimonial home, etc.).

This increased stress on the court system and the increasing cost of legal services for separating spouses has motivated those involved in the system to look for more cost effective alternatives.  These alternatives have included the provision of family law legal information through various government websites, self-help group websites, programs put on by the Ministry of the Attorney General at courthouses through Ontario [called Mandatory Information Programs] and community agencies and organizations establishing educational programming for parents and the children going through the separation process.

One of the most popular alternatives to judicial dispute resolution that has attracted a lot of attention are the mediation initiatives that have sprung up around the province. However, just as with other consumer services there is an increasing need for the regulation of those holding themselves out as mediators or arbitrators.

There is little formal control over the quality or the credentials of those offering mediation services.  As a family law lawyer it has been increasingly common to hear horror stories from clients complaining about the lack of clarity of resolutions achieved in mediation or that various topics or issues that should have been canvassed in mediation, were not. I have even seen separation agreements written by mediators who have performed the mediation in which they “assisted” the parties in achieving a resolution. Sometimes these separation agreements [or the supporting documentation with them] makes no mention of whether the parties have had an opportunity to receive independent legal advice throughout the process or before they have signed the separation agreement.

In the rush to save money, separating spouses often end up causing themselves further grief, stress, and expense when the need arises to interpret a clause of a poorly drafted agreement or to deal with an issue that was not contemplated in the agreement drafted by the mediator.

Family mediation has reached the point of general acceptance by the population and thus requires regulation – whether that be self-regulation or governmental regulation is the pressing issue for these service providers and for those receiving mediation services.

At the present time mediators providing services in Ontario within the family court system must have accreditation or certification. At present Family Mediation Canada, the Ontario Association of Family Mediation and the ADR Institute of Ontario Inc. have criteria by which they assess members who seek to provide family mediation services. There are requirements for specialized training and a minimum amount of relevant work experience. However, for those providing mediation services outside of the court system there are no similar requirements before hanging up a shingle as a mediator. While many family law mediators are lawyers who therefore have professional qualifications through their law society there are others, such as social workers, clergy, etc. who offer services as family law mediators who may or may not have the skill sets, education and training to provide quality services to a relatively vulnerable population going through an emotional stressful journey.

The Family Law Lawyers at Barriston Law have been offering mediation and arbitration services on an informal basis for several years.  We are now formally offering Mediation and Arbitration services through ‘Barriston Resolution Services’.  Tom Dart, Kim Kieller, Doug Manning and Jodi Armstrong have, among them, over 70 years of combined experience as family law lawyers and over 25 years of experience as Mediators and Arbitrators sanctioned by the Ontario Association of Family Mediation and the Arbitration Institute of Ontario.  We bring a wealth of experience and creative problem-solving strategies to clients who wish to retain our services to act as Mediators or Arbitrators in their dispute or to represent them as their lawyer within the context of Mediation and Arbitration processes.

For more details of our services please refer to our website:  www.barristonresolutions.com