When you separate, there are often so many things that must get resolved – the parenting plan for the children, financial support for the children or for the spouse, the property division and all the details involved with all of those issues. Even if both sides are cooperating, resolving all these issues can take what seems like a very long time.  There is often fear on both sides about the unknown – our clients are always asking: “what will my life look like when the final settlement occurs? How can I cope when I don’t know if I will have enough money to take care of myself, let alone the kids? How much will I have to pay and will I be able to pay that much and still be able to live myself? Can’t somebody give me quick answers to all of this so I know what I have to deal with?”

Sooner or later, though, you do come to a resolution. Maybe it’s by agreement and you get it all written down in a nice legal document – your separation agreement. Or, if there was just no way to settle, by a Judge who makes a Court Order deciding all these issues for you both. At that point, you finally say “I’m done, it’s over with, now I can move on.” Problem is though, you just think you’re done. Maybe your lawyer told you or didn’t tell you, but with respect to parenting issues, child support and spousal support, the settlement arrangement can always be changed.

Even where you have an agreement which reads “my spouse will never get any spousal support”, the fact is that  Court can still award your spouse spousal support if the Court thinks circumstances have changed and support should now be paid.

Most court orders and agreements allow for a change of the parenting plan, child support or spousal support whenever a ‘material change in circumstances’ occurs from the time that the order or agreement was made. Today, we are seeing so many who have had an agreement or court order in place who need to change the support arrangements because they have lost their job for example. For the vast majority, going through the legal process again is not something they want to do. But they are forced to do so because they simply cannot continue paying what they agreed to pay, or because the children’s situation has changed and they need to revise their parenting plan in a significant way. Often, one of the children changes households from one parent to the other. What can you do now to change that old order or agreement.  You probably have no more money to pay lawyers – so what do you do.

Well, first you try to come to a new agreement with your former partner. But, if that is not realistic you end up having to bring what is called in the Family Court, a Motion to Change. You can fill out all the necessary forms yourself. The Ontario Government has the forms online at their web site http://www.ontariocourtforms.on.ca/english/. It also has a Guide to Motions to change at  http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/support/motion.asp which sets out the steps when you need to bring the Motion or when you need to respond to it.

In Barrie, Toronto, Newmarket, Oshawa, Brampton and Milton, there is a separate procedure set up which is designed to try and resolve these kinds of issues for you in a much quicker and more expeditious manner. A number of family law lawyers in each of these jurisdictions have agreed to donate several days of their time per year to sit as “Dispute Resolution Officers” or (as a D.R.O.). These lawyers will be handling your case when it appears that there is going to be a dispute about any of the matters which need to be changed in your prior agreement or Court Order. 

The D.R.O. role is to assist you in understanding the legal issues and procedure which you must follow in your case and to do as much as they can to assist you in resolving those issues by agreement so you don’t have to go all through the court system again.  All of them will read your material before you get to the hearing before them and all of them will know what your case is about before you get assuming you have expressed it well in your material. If you have not been able to express yourself well, they will take the time on the hearing date to ask questions so that they know why it is you feel the order should be changed or not changed. They spend about half a day ahead of the day they are sitting preparing for the day with you. You won’t be the only case on their list. So you won’t have their time all day. But you will be slotted usually for about a half hour to an hour, more if the other cases on the list get adjourned or move more quickly than yours.

Why are the lawyers doing this? Well first, they don’t get paid, so it’s sure not for the money. The main reason is that they know that there are just so many of these kinds of cases out there in our Family Court System right now, cases which the system just can’t handle due to the volume. Unfortunately, in these tough economic times, people find themselves having to revisit their old agreements and court orders due the big change a job loss or wage cut causes for them.  With all of the other ‘first time around’ cases going through the System, there are just not enough Judges or court personnel to properly handle the current volume.  Government budgets are strained and there just is not enough money to put into the Justice System to properly manage the current volume.

Needless to say, the D.R.O.  job is not an easy one. It is not easy to get people to agree on these issues, issues which people thought they had resolved for good, the first time around.  The fear of the unknown is back and the reality is that these fears are justified these days as there simply is no ability to pay support when you lose your job. The former spouse and children who need that money can’t get it anymore.  Handling these desperate and trying cases is certainly a difficult and unenviable task. 

Obviously, there are many social issues involved in situations like these – issues which can’t be addressed here. But I do think we need to express our heartfelt thanks to the D.R.O.’s out there who so selflessly try to make things work and make them better.  Not only are they not getting paid for their work, they are taking time away from their busy law practices.

I know there lots of ‘unsung heroes’ out there who do a lot of excellent volunteer work. Without volunteers, I don’t know where we would be. I hope you will agree with me that the D.R.O.s out there are part of these ‘unsung heroes’. We need to acknowledge their presence and pray for the time when we won’t need them anymore.

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

I have provided services as a mediator and arbitrator for several years.  In addition, I have conferred with other mediators in the field.  Given our experiences here are some suggestions to make the best use of family mediation. 

  1. Be prepared – Review important issues and facts before you arrive.  Be sure that the other party (or his or her lawyer) has all the information you will be relying on in advance of the mediation.  Be sure you have all the facts and information you need to make a decision.  Mediation is most effective if everyone knows the facts in advance and has a chance to think about those facts before meeting.
  2. Consider your options – Think about a range of settlements that will meet your needs.  Think about the range of options the other party might be prepared to accept or offer.  Mediation offers the opportunity to resolve disputes in more creative and flexible ways than can a judge.  Do not set a bottom line.  You are attending mediation so that the other party will re-evaluate their case and seek settlement options.  You should be prepared to do the same.
  3. Know your legal costs – Know what further legal costs may be incurred by you if you do not resolve the matter at mediation.  The cost of settling early may be an important factor as to whether or not you wish to resolve the matter by way of mediation.  Further negotiations between counsel or further litigation can be very costly.
  4. Know your lawyer’s role – In mediation, the mediator’s job is very different than a judge in a courtroom. What you want is to do is to convince the other party to accept a settlement you can accept.  Your lawyer and the mediator will want to keep the lines of communication open.  Acknowledging the other party’s strong points and holding back on statements that might offend the other party are good tactics for you and for your lawyer.
  5. Know your case – Be sure that you fully understand what the possible range of outcomes are if you were to choose to pursue litigation or other options than mediation.  Ask your mediator to give a realistic assessment of your risks and possible outcomes (good and bad) should you fail to settle your matter.
  6. Participate – A significant part of the mediation is discussion between the parties while being assisted by the mediator.  Lawyers have an important role to play, but often it is the clients’ participation that makes the medication successful.
  7. Focus – Be clear about your concerns, your needs, and your objectives.  Be prepared to discuss these.  This type of information assists the other party to formulate settlement offers that satisfy your objectives.
  8. Trust the mediation process and the mediator – The process may seem foreign to you.  It might be different than other negotiations you have been part of.  Remember, the mediation process is a proven way to resolve disputes.
  9. Listen carefully and respectfully to the other party  –  Think about how you listen.  Let your body language tell the other person you are prepared to listen and prepared to discuss.  Speak carefully and respectfully to the other party.
  10. Be assertive in stating your concerns and viewpoints – Avoid language that will antagonize the other party but state your position clearly and succinctly.  Do not threaten, accuse or give ultimatums. You will more likely achieve success if you are hard on the problem but easy on the person.  Try to communicate in a neutral, non-judgmental way.
  11. Be willing to persuade the other party about the rationality of your position.  Look for outside information that the other side will respect, that supports your viewpoint.  Your lawyer and the mediator will be able to supply information as to how a Court may decide your matter based on how it has decided similar matters.
  12. Be open to persuasion – Be open to creative solutions.  Part of what makes mediation successful is that people find solutions that no one has thought of before. In order to do this, you should come to mediation with an “open mind”.

Repeatedly, in initial interviews and even in discussions with friends and other lawyers, I hear interpretations of family law that may be considered “urban myths”, using cultural parlance.  This blog deals with the top three in regard to married parties and the matrimonial home.

Myth 1

Myth – The matrimonial home is deemed to be jointly owned even if only one spouse owns the property.

True or False? – False

The Family Law Act is a provincial statute that governs property division in Ontario.  In 1986 this current statute replaced the previous Family Law Reform Act (FLRA).  In the FLRA , all assets were deemed to be “family assets” regardless of ownership and, subject to certain restrictions, equally divided between spouses, regardless as to which spouse had title.  In 1986, a fundamental philosophical  change in the division of property occurred with the institution of the current Family Law Act (FLA). As a result, legal title was recognized for property division purposes.  However, in order to avoid mischief the legislators included certain provisions regarding the matrimonial home to protect the rights of a non titled owner/spouse.  The matrimonial home is defined as “ every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his spouse as their family residence is their matrimonial home”  While legal title remains with the titled party , Part 11 of the Statute provides the non-titled party with certain rights including:

*the right to possession of the home;

*disallowing the titled spouse to encumber (for example, borrow against or mortgage or dispose) of the matrimonial home.  If the titled spouse attempts to do so the transaction can be set aside by the court, and

*the right to “exclusive” possession of the matrimonial home, even if the requesting party is not a titled spouse.

So, how does this affect the myth?  The ownership of the matrimonial home is relevant to the division of property.  For example, if it is owned by one party the then it is valued at the date of separation and accounted for by the owner in his or her “column” of the value of his or her net family property. but the non-titled spouse still has the right to live in the home by agreement (possession) or court order (exclusive possession).

The answer to the myth is therefore, no.  The matrimonial home is not deemed to be jointly owned.  An owner accounts for the full value of the home for property division purposes, but each party has an equal right to reside in the home.

Myth Two

In dividing property on separation there are certain “deductions” from the value of your property such as debts and property owned on the date of marriage.

Myth – One can never deduct the value of a matrimonial home from their net family property

True or False?  False

If one owns the same home at the time of separation as he or she did on the date of marriage, the Family Law Act does not allow the deduction.  But a matrimonial home as defined by the statute speaks to the occupation of the home at the time of separation.  If another home was owned on the date of marriage, and was subsequently sold, the value of the date of marriage property may be deducted as it is not the same property as the home ordinarily occupied on the date of separation.  Of course if the home on marriage was owned jointly at the date of marriage (and is different from the one occupied at separation) then each party will be able to each deduct the same value and there will no benefit to either of them (unless the deduction places one party in a negative net family property value, but that is another issue).

The answer to this myth is no – there are times when a party can benefit from a home owned on marriage.

Myth Three

There can only be one matrimonial home.

True or False?  False

The matrimonial home definition states that “every” property owned on the valuation date is a matrimonial home.  The very definition clearly indicates that, yes, there can be more than one matrimonial home, such as a cottage, chalet or condo.  This issue is especially  relevant when the second home (for example a historic family cottage) has been gifted or inherited by one party.  If the property is a matrimonial home and ordinarily occupied by the parties at the time of separation then the gifted and inherited property owned by a spouse cannot be excluded.  Usually inheritances and certain proven gifts can be excluded or “taken out” of the property division calculation, but if the property is a matrimonial home it cannot be excluded.  Imagine the surprise of  a separated party has when he has been given the family cottage and now has to include the value in the property division process!  As a result it is proper to ensure that when such decisions are made within the family, legal advice is obtained for the giving party, the receiving party and the non-titled spouse.

The Answer to this myth is yes – there can be more than one matrimonial home.

In subsequent blogs I will continue to discuss myths including common misunderstandings of the division of property, child support and forms of custody

By Jodi Armstrong

When you are already in a stressful situation, and perhaps feeling a little overwhelmed by the issues that have arisen as a result of your separation, it would be nice, I am sure, to have a clear understanding of the meaning of the words that we family law lawyers tend to throw around on a regular basis.  Well … here is your cheat sheet to some of the acronyms and terms commonly used in a family law matter:

Access 

The right to spend time with a child which has been expanded to include the right to certain information about the child.

Affidavit

A sworn written statement of facts which is a form of evidence.  The facts should be within the person’s personal knowledge or, if the person learned of the fact from someone else, he or she must name that person and confirm that he or she believes that the fact is true.

Answer

The document that responds sets out the Respondent’s position on the issues raised in the Application, the claims being made by the Respondent, and the important facts that support the Respondent’s claims.

Applicant

The person who starts an Application.

Application

The document that starts a case and provides an outline of the family  history, sets out the claims being made by the Applicant, and the important facts that support the Applicant’s claims.

CAS

Children’s Aid Society.

Cohabitation Agreement

An agreement, entered into by two people who are cohabiting (or intend to cohabit) who are not married to each other, that addresses their respective rights and obligations during cohabitation or in the event of a separation.

CRA

Canada Revenue Agency

Custody 

A bundle of rights that give a person control over, and responsibility for, the child’s care, upbringing and education.

Divorce

The final, legal ending of a marriage, by Court order.

DRO

Dispute Resolution Officer – court sanctioned lay mediators who work within the court process at an early procedural phase in an attempt to assist litigating parties to resolve their legal issues.  Experienced family law lawyers have been appointed as DROs to conduct initial appearances for all Motions to Change.

Endorsement

A judge’s instructions with respect to the decision he or she has made signed by the judge and forming part of the record.

Equalization Payment

The payment owing from one married spouse to the other to equalize the parties’ net family property.

FRO

Family Responsibility Office – A program through Ontario Ministry of Community and Social Services that helps enforce court-ordered child and spousal support responsibilities.

Guidelines

The Child Support Guidelines

Marriage Agreement

An agreement, between two people who are married to each other (or intend to marry each other), that addresses their respective rights and obligations during the marriage or in the event of a separation.

Matrimonial Home

A family residence in which at least one of the married spouses has an interest that is ordinarily occupied by the spouses or, if the spouses have separated, was ordinarily occupied by them at the time of the separation.

Motion (for a Temporary Order)

A court appearance in front of a judge seeking: 1) a temporary order for a claim made; 2) directions on how to carry on the case;  or 3) a change in a temporary order.

Motion to Change

A certain type of case in which a party is seeking an order to change: 1) support in an agreement that has been filed with the court or 2) a final order.

NFP

Net Family Property – Generally speaking, a married spouse’s net worth (assets less liabilities) at the time of the separation less the spouse’s net worth at the time of the wedding.

OCL

Office of the Children’s Lawyer

Order

The formal written document recording the decision that has been made by a judge on behalf of the court in a litigated proceeding.

Respondent

The person against whom a claim is made .

Section 7 Expense

Special or extraordinary expenses which fall within a legislated list under section 7 of the Child Support Guidelines, the cost of which are to be shared by the spouses in proportion to their respective incomes.  The obligation to contribute towards section 7 expenses is in addition to table support.

Separation

When there has been a breakdown of the relationship such that the spouses are not living together anymore in a marriage-like relationship and there is no reasonable prospect of a reconciliation.

Separation Agreement

An agreement entered into between two people who have cohabited and are living separate and apart

SSAG

Spousal Support Advisory Guidelines – the Department of Justice Canada contracted with two family law professors to develop these guidelines.  They are not legislated but they provide suggestions on the appropriate ranges of spousal support amounts and duration of support, in a variety of situations.

Table support

The amount of support payable under the appropriate table in the Child Support Guidelines based on the number of children to be supported and the annual income of the support payor.

Trial

The resolution of a dispute of fact or law through judicial examination of evidence submitted by opposing litigants.

This is by no means an exhaustive list and I am probably forgetting something obvious.  In any event, whenever you are unsure about the meaning of something that is related to your family law matter, make sure that you ask the question … we want you to understand the process and we are always happy to try to explain.

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

For years family law lawyers in Ontario (and their clients) having been waiting for (and lobbying for) changes to the legislation governing pensions upon separation.  The reason for the desire for change was to be able to treat a spouse’s (or both spouses’) pension(s) more equitably and hopefully in a more straightforward manner .  The end goal was to treat the pension as a separate entity and share the growth in the pension during the marriage equally between the parties at the time of separation with each spouse getting their own pension.

Up until now, the process has generally been for the parties and their lawyers to obtain a statement from the pension plan administrator for the pensioned spouse and then forward that statement (usually for “defined benefit” pension plans) to an independent pension valuator.  The valuator would also need the marriage details (date of marriage, date of separation, ages of the parties, earnings of the pension member, etc.) and then the pension valuator would perform calculations and provide an estimate of the value of the pension.  There has not been a legislated formula establishing precisely how the pension is to be valued.  The valuators have relied upon calculations derived from their own industry and been guided on which principles to use by case law decisions determining the preferred methods to be used in a particular type of situation. 

Usually the pension valuator will give alternative values for the pension based on the date on which the pension member can retire with an unreduced pension and the date of retirement that is traditionally used  (usually 65 years of age).  The parties are then left to determine which of the 2 or 3 values provided most accurately reflect the reality of the parties.  By that I mean, did the parties always plan for the pension member to retire at the earliest possible age with an unreduced pension or was it going to be necessary for the pension member to work longer?

Once the parties have determined the appropriate value to be used (or a court has decided the value for them) and if the parties wish to divide some portion of the pension so that the non-pensioned spouse receives their own form of pension, then the pension plan administrator must be consulted to make sure that what the parties want to achieve can be achieved under Ontario law.  Ontario law restricts the parties to accessing a maximum of 50% of the pension growth from the date of marriage (or cohabitation) to the date of separation to go to the non-pensioned spouse.  So if the valuation indicates that the growth in the pension from the date of marriage to the date of separation is $50,000 then the parties can agree to carve off up to $25,000 of the pension to the non-pensioned spouse into their own retirement vehicle.

This process could mean that the pension plan administrator would have to hire their own actuary to make sure that what the parties want done can be done.  Also, the benefit which the non-pensioned spouse might receive from the pension may be more or less than the amount estimated in a pension valuation performed as at the date of separation because of a number of factors.  These factors include unforeseen investment losses or gains; changes to the benefits provided under the pension plan or restrictions imposed on the plan due to the operation of the 50% rule.

Starting in January 2012 a new process has been legislated to begin.  The pension value process will change in 2 important ways.  First, the formula used to determine the value of the pension is regulated and the formula will be applied by the pension plan administrator.  This means that separating spouses will no longer be required to hire independent pension valuators for pensions governed by provincial legislation.  Second, for a pension member who has not yet begun to receive a pension, the amount going to the non-pensioned spouse must be made in the form of an immediate lump-sum transfer from the plan.  There will be a single value determined; there will no longer be 2 or more values depending on the particular facts of the case.  For members already in receipt of their pension payments at the time of separation then the payment to the non-pensioned spouse must be made by dividing the pension payments between the pension member and the former spouse.

In the typical case this will general mean four steps:

  1. The pension plan member or their spouse or former spouse makes an Application to the pension plan administrator for a determination of the “family law value” of the pension.
  2. If the application has been completed correctly then the pension plan administrator will perform the calculations to determine the “family law value” of the pension and provide a statement to this effect to the requesting party.
  3. The pension member and their spouse (or former spouse) will determine how the “family law value” of the pension is to be treated and obtain a court order or separation agreement reflecting this.
  4. The spouse or former spouse of the pension member informs the pension plan administrator of their decision to either divide or not divide the family law value of the pension.  If the decision is not to divide the value of the pension then the parties have presumably found another way to satisfy the non-pensioned spouse’s share of the pension and thus the pensioned spouse will keep their pension intact.

As you can imagine there are specific government forms that need to be used at each step of the process and the forms vary depending on the type of pension and whether the pension is already “in pay” at the time of separation.

For more handy and easy to understand information about the changes that will take place starting in January 2012 I suggest you visit the government website at: 

http://www.fsco.gov.on.ca/en/pensions/Family-Law/Pages/familylawforms.aspx.

Catherine Hyde, Family Law Clerk.

reindeer.jpgThe commercials have already started advertising the upcoming Christmas season, displaying those warm fuzzy families.  Now that you are separated or divorced, you can’t help but wonder how you can still have the best Christmas for yourself and your children.

Even though it is still just over a month away, it is best to start planning for Christmas now.  If your access schedule has not yet been finalized for Christmas, make sure that you start negotiating Christmas access now. Do not leave it until the week before Christmas to contact your lawyer and advise that you need him/her to do something because you don’t have any access at Christmas.  Any motions required to facilitate Christmas access will need to be done now.

Practice stress management during this busy season. 

  • Ensure you are getting plenty of exercise.  Go outdoors in the crisp winter air. Keep up your regular exercise or try out one of the many exercise DVDs
  • Take time to meditate  – focus on your breathing or focus on a lit candle
  • Make lists, strategies of how to deal with those situations that come up i.e. no babysitter, no time to make dinner – have backup sitters, casseroles in the fridge and a list of go to quick 30 minute suppers
  • Don’t over schedule yourself or the children.  Ensure you have time to simply sit and enjoy your own home, your decorations and watch the old Christmas specials on the television together
  • Learn to say no.  If you don’t have time to bake cookies or attend an event, just say so.
  • Let the children know what realistic expectations they can have for presents this year.  Get them involved in making presents for some of your friends and family. It will give them pride in their accomplishments and save on your pocket book
  • Talk to a friend or counselor if you are having problems 

You may wish to check out these blogs for further tips:

My hope is for you to enjoy all the season might bring and that you will still be standing on January lst.  To that end I would refer you to an earlier blog article I wrote New Year, New You! : Matrimonial Matters.  

Continuing Powers of Attorney for Property are one of the documents frequently executed in estate planning practices.

The majority of Continuing Powers of Attorney for Property have no restriction in the authority given to the Attorney for the management of the grantor’s property. As such, the Attorney, when acting pursuant to an unrestricted Power of Attorney for Property, can administer the grantor’s property in virtually any fashion (ie: open and close bank accounts/maintain and sell house or vehicle/pay bills/collect debts/deal with investments).

The only limitation in authority is that the Attorney cannot make a will on behalf of the grantor.

With this broad legal authority, however, comes several legal obligations and responsibilities for the Attorney. In administering the grantor’s property, the Attorney must act in relation to the said property as a fiduciary, whose powers and duties shall be performed diligently, competently, with honesty and integrity and in good faith for the grantor’s benefit.

Decisions made in relation to the grantor’s property must consider the grantor’s personal comfort and well being.

An Attorney who does not receive monetary compensation for managing the grantor’s property must exercise a degree of care, diligence and skill that a personal of ordinary prudence would exercise in the conduct of his or her own affairs.

An Attorney who, however, receives monetary compensation for managing the said property must exercise a degree of care, diligence and skill that a person in the business of managing the property of others is required to exercise.

An Attorney can be liable at law for damages resulting as a breach of his or her duties.

The Attorney can be required to provide a financial accounting for the period of time the Attorney has administered the grantor’s property. The Attorney will be required, at law, to keep accurate accounts and to present the accounts in a specific, detailed format. The accounts must clearly show how all the monies or assets received have been disbursed.

In my previous blog on the high cost of lawyers in family matters, I promised to lay out a couple of additional ways in which fees can be reduced.

  1. The work you can do:

A lot of time is taken up in gathering the necessary information for your lawyer so that he or she can give you proper advice. There are always at least two sides to every case and information is needed from both sides before proper advice and recommendations can be secured.

First, the lawyer needs to know all about you. He needs to know the history of your relationship with your partner. If you can prepare a good ‘chronology’ or  time line of your relationship from beginning to end, you will have saved a lot of time for your lawyer. A ‘good chronology’ is not a ‘book’. It’s just a bullet point history of the major events in your relationship: work history (our employment resume is probably enough if up to date); residential history; children (and their development along with who was involved doing what with them during their upbringing); history of major purchases; inheritances or other gifts from third parties (and what happened to this property); details about your career and its milestones; and, finally, a statement of the outcome you would like to have at the end of the process.

There is a lot more information to provide as you might expect. The lawyer also needs to know about the property and debts you both brought into the relationship,  and the property and debts you both have at the end of the relationship. He needs to know details as to your present income, your employment benefits, status of your health, your partner’s health, pension benefits for either of you, life insurance protection, other insurance coverage and just about everything else of any significance in your life.

You will also need and can begin to gather all of the documents related to the above items but in particular which prove the balances in your bank accounts, investments, pension plans, etc. as well as the balances owing on all of your debts. All of this is required for the date of the separation.

If you are good at organization, you can put these documents in separate file folders to assist your legal team in organizing them under the proper categories. If you cannot do this before your first appointment, your lawyer will likely give you a package of instructions and forms for filling out at the time of your first meeting. The point is that the more of this you can do on your own, the less time it will take your legal team and therefore the more money you will save.

Your lawyer also needs information from your partner. Therefore, if you can copy documents similar to your own but related to your partner (partner’s income, property at date of separation, debts at separation date, etc.), before you leave the home, you will have already started the process which your lawyer will have to continue but, once again, when you do the work, your lawyer does not have to and you therefore save money in legal fees.

As your case goes along, there will be other things you can do to save expense, like getting documents copied or delivered to the other side’s lawyer. You can likely become as involved as you would like in marshaling all the evidence your lawyer will need to properly advocate on your behalf. Always ask questions about what you can do to help – it’s a great way to reduce your costs.

  1. The type of retainer you have with the lawyer:

For many years, when you retained a lawyer to ‘handle your separation’, the lawyer was required to ensure that every single potential issue that might arise as a result of your separation was properly attended to. With all of the sophistication and complexity of the modern world and the impact which this is had on the family, these issues can be very numerous and very time-consuming to resolve. This is one of the reasons for the skyrocketing costs of legal services everywhere. This type of “lawyer work” is still required when you have a full services retainer arrangement or engagement with your lawyer.

The Law Society of Upper Canada, which is responsible for governing the conduct of all lawyers in Ontario, has recently passed some amendments to the Rules of Professional Conduct which now, for the first time, permit lawyers to enter into limited retainer or limited fee arrangements with clients. This means that you can now retain a lawyer for very specific roles in relation to your case so long as the lawyer makes sure that you fully understand the limitations of such an arrangement.

For example, you might think that you could engage a lawyer to assist you with preparing your court documents to start a court proceeding against your partner. This can now be done. However, you would need to know that the lawyer would not be going to court for you and would probably not be undertaking the full investigations that are necessary to give you proper advice and recommendations. Whether or not the engagement included this kind of work would all depend upon your instructions to the lawyer and the agreement which you and he signed prior to him doing the work. You would be left to do this on your own. You would therefore not be able to find fault with your lawyer if, at a later date, you discovered that you had overlooked an investigation which should have been undertaken and as a result, seriously compromised your own rights. It is the lawyer’s responsibility to make sure that you understand the limitations which you are imposing upon him by a limited retainer arrangement.

In order to make sure that both the lawyer and you as the client understand this limited type of retainer, the lawyer will require you to sign an engagement or retainer letter which sets out these limitations very carefully for you in an understandable way. The lawyer will not be able to perform this type of work for you without a written engagement letter which you will have to sign.

The services performed under these types of limited retainer or limited engagement agreements are often called “unbundled legal services”.

Sometimes these arrangements are made after the client has already started either negotiating with their partner or are in court. So even at that point, a limited retainer arrangement is possible. The type of arrangement depends upon what you need from the lawyer. The range of services can be anywhere from simply wording a document in proper legal terminology to giving full far ranging advice about a specific issue in your case. In other words, you and the lawyer can now tailor make the type of service you require at any given point in your case.

While there are many risks involved in representing yourself in negotiating your own agreement or proceeding through court on your own, you can lessen these risks with unbundled legal services and save some money on overall legal fees.

If you would like to see the revisions to The Rules of Professional Conduct as it relates to these unbundled legal services, please click on the following link http://www.lsuc.on.ca/unbundling/ and follow the links to Rule 2 and if you would like to learn more, see the Report to Convocation upon which those amendments were based at http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147485622

There was recently a flurry of news coverage in Canada: http://www.thestar.com/news/article/1060078 and internationally:

http://www.bbc.co.uk/news/uk-england-manchester-15074776  reporting that a missing little girl from Manchester UK had been found in Quebec. The little girls’ story is a sad one, though similar tales have become more familiar and more widely reported in recent years. Pearl Gavaghan Da Massa was located by police in Montreal.

When Pearl was 3 years old her mother left the UK with her, taking her to Mexico, the US and then Canada. Pearl’s mother and father had court ordered joint custody and shared residence of Pearl, and her mother left the UK without Pearl’s father’s legal consent. It is clear Pearl’s mother went to great lengths to hide Pearl from authorities and her father. Pearl and her mother frequently moved, changed their names repeatedly, Pearl is 7 and has yet to go to school.

Pearl’s mother says she took Pearl and hid her to protect her from an abusive father; Pearl’s father says essentially that Pearl’s mother was unhappy with the court’s decision and took matters into her own hands. Pearl’s case is extraordinary: Her mother’s efforts to hide her were extraordinary, as was her father’s determination to find her.

Though Pearl’s case is extraordinary, it raises legal and parenting issues relevant to a lot of separated families. From a legal perspective Pearl’s mother abducted her. Many parents are surprised to learn that they can themselves be considered an abductor of their own child in certain situations.

There is federal, provincial and international law dealing with child abduction. In Ontario the relevant legislation is the Children’s Law Reform Act. The Federal Divorce Act may also apply, as may the Criminal Code. The most referenced international agreement is called the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“Abduction Convention”) which deals with international abductions.

The principal purpose of the Abduction Convention and Canadian legislation on interprovincial and international abduction, is to cause the prompt return of a child to his or her habitual residence. The Abduction Convention does not specifically define “habitual residence”. Ontario’s Children’s Law Reform Act provides that a child is “habitually resident” in the place where he or she resided:

a)  with both parents;

b)  where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

c)   with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

The removal or withholding of a child without the consent of a person having custody of a child does not alter the habitual residence of the child, unless there has been acquiescence or undue delay in seeking the return of the child by the person from whom the child was removed.

The return obligation of the Abduction Convention is, except in exceptional cases, mandatory. This is based on the principle that custody disputes should be resolved through the civil courts in the jurisdiction of the child’s habitual residence.

Under the Abduction Convention the mandatory return obligation will become a discretionary obligation where the party opposing the child’s return establishes that there is a grave risk that the child’s return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. The threshold for establishing grave risk is high. Unless there are some powerful and compelling reasons otherwise the court is normally expected to exercise its discretion and return the child to his or her habitual residence.

In spite of the spirit and intent of the Abduction Convention, and that of similar Canadian legislation which require the return of the child to his or her habitual residence, abductors have used the exception clauses as a vehicle to litigate custody/access claims. This was not the intention for such legislation, and this approach in fact renders the legislation quite ineffective. Canadian courts are becoming more aware of this strategy.

A parent who unilaterally decides to remove a child from their habitual residence, particularly where there is a custody or access order, should be aware that they may become labelled an abductor, and of the consequences of such a characterization. Such a finding will undoubtedly have a profound impact on that parent’s custody and access claims.

Pearl has now been returned to her habitual residence and the court with jurisdiction in the UK is in a position to reconsider the impacts to the custody order in light of Pearl’s abduction, as well as Pearl’s mother’s allegations regarding Pearl’s father.

Legal matters aside, the actual impacts on Pearl herself are likely to be quite significant. Children abducted by one parent often suffer from psychological disorders including post-traumatic stress disorder, reactive attachment disorder, general anxiety disorder, separation anxiety disorder and learned helplessness. The duration of the abduction is often predictive of the severity of such disorders.  

The absolute best advice for anyone considering relocating with their child is to speak with a reputable family law lawyer before taking any steps towards the relocation. Do not gamble on the possibility that the removal is allowed or that the other party will acquiesce. The potential consequences for custody claims, and the child’s well being, are simply too severe.

I just read an article in the September 12, 2011 issue of McLean’s that caught my eye.  The article written by Julia McKinnell discusses a new book for divorced parents entitled “Joint Custody with a Jerk” co-authored by Julie Ross and Judy Corcoran. Boy, the article hit home with me as in my practice I get calls on almost a daily basis about the “jerky” things that parents who are separated do to each other.  In my work as a Children’s Lawyer it also amazes me how children can be so in tune with the bad behaviour and post-separation craziness and how some parents just can’t see how their behaviour impacts these children.  I just ordered the book online…so I will blog later and let you know if it is a good read and whether it would be helpful to those who co-parent.  In the interim here’s the link to the McLean’s article:

http://www2.macleans.ca/2011/09/07/joint-custody-with-a-jerk/#more-212343