A recent, short article in a national newspaper caught my attention.  Apparently, lawmakers in Mexico City are considering enacting legislation that would allow for  “trial” marriages as short as 2 years in duration.  (I know some of you may be thinking “all marriages are like going through a trial”).  This proposed law would allow couples to choose the length of time of their marriage commitment to each other with the minimum being 2 years.

If the couple are not happy with the way things have worked out after the designated length of time, the marriage simply ends.  The parties would not have to go through a divorce process.  Sounds pretty good.  But it will never happen in Ontario (or Canada).

So for those of us who are thinking about getting married in this neck of the woods, the old “til death do us part” will probably still apply.

This brings home the importance of considering the use of a Marriage Contract or Cohabitation Agreement in order protect the assets that you are bringing into a relationship in the event of a separation.  A Marriage Contract of Cohabitation Agreement can also clarify the parties’ responsibilities for spousal support, assumption of liabilities and other financial matters in the event that the relationship is not “happily ever after”.

Matrimonial Matters is pleased to announce that, effective October 1, 2011, Burgar Rowe Professional Corporation and Purser Dooley Cockburn Smith LLP will merge to form a new firm, Barriston LLP.

 While both firms have strong client bases and excellent longstanding reputations within the community and beyond, the growth opportunities of the combined firms are tremendous.

Clients will benefit from the merger by gaining access to a greater diversity of legal services, as well as a larger pool of talent, expertise and experience.

The Barriston name aligns with our vision to be the leading law firm in the region. It recognizes our histories, experiences, personalities as lawyers reflecting our professional commitment to excellence in client service and our support for community values.

Going forward, Burgar Rowe Professional Corporation’s commitment to provide strong, yet compassionate representation in family law matters will continue unabated.

The Matrimonial Matters blog will continue going forward.

The Child Support Guidelines, which came into effect on May 1, 1997, set out four admirable objectives:

  1. to promote fairness to children;
  2. to ease tension and conflict between parents;
  3. to reduce litigation; and
  4. to ensure consistent treatment of parties.

When children reside primarily with one parent (more than 60% of the time), the Guidelines are pretty clear-cut and as a result those objectives are more easily met.  There are always some exceptions to the rule but, generally, the payor is required to pay child support in accordance with a legislated table based on his or her income and the number of children for whom support is payable. 

In a shared parenting situation (the children reside with each parent at least 40% of the time), the Guidelines provide for a three-step process for determining the monthly amount of a child support order.  The objectives remain the same but are not as easily met because the analysis is more complicated and the outcome, unfortunately, is much more difficult to predict.

The first step is to consult the tables but, in a shared parenting situation, we have to consider both parents’ obligation to pay “table support”.  We determine the set-off amount by subtracting the lower income earning parent’s table support obligation from the higher income earning parent’s table support obligation.  This, however, is NOT the end of the analysis.  There seems to be a common misconception out there that the set-off amount is the appropriate amount to be paid in all shared-parenting situations.

The second step is to consider the increased costs of shared parenting arrangements.  A proper analysis will require each parent to prepare budgets for child-related expenses in order to determine the total child-related budget for both households.  As an example of how one Superior Court judge recently considered this step of the analysis, he looked at each party’s budget and then determined what amount of support the recipient spouse would require, in addition to the recipient spouse’s proportionate share of the total budget, to be able to cover the child-related expenses.  For example, if the total child-related budget for the children was $4,000.00 per month and the recipient earned 35% of the parties’ combined income, the recipient should be responsible for 35% of the total budget or $1,400.00.  If, in reality, the recipient had a child-related budget of $2,000.00, he or she would require an additional $600.00 of support from the payor to cover those expenses.

The third and final step is to consider the conditions, means, needs and other circumstances of the parties and the children.  In other words, how does the lifestyle and net worth of the payor compare with the lifestyle and net worth of the recipient?   

It is important to remember that, in a shared parenting situation, all three steps must be taken into account when determining the appropriate amount of child support and that the weight of each step will vary according to the particular facts of each case.  This results in more uncertainty but acknowledges the overall situation of the parents as well as their respective ability to financially support their children. 

By Evelyn Thompson, Family Law Clerk

I recently attended a Mandatory Information Program session, also known as a “MIP”.  I was on a fact-finding mission.  I wanted to experience, first-hand, the basic information that is given to both parties so I might better prepare my clients as to what they could expect.  What surprised me, though, was how overwhelming all that information must be to absorb to someone who already has a great deal going on in their life.

The primary purpose of a Mandatory Information Program is to provide early information for separating spouses and their children.  Knowledge is key and understanding that you may have an alternative to a lengthy Court battle may give you back some of the control you might feel has been missing in your world recently. 

In 2011, MIP was expanded to all Family Court sites in Ontario.  While this program may be new to Simcoe County, it has been successfully implemented for several years in Toronto. 

Tom Dart, a partner in our family law department, has posted two very thorough and easy-to-follow articles that give detailed information about the content of these sessions.

In Simcoe County and the District of Muskoka, The Mediation Centre in Barrie is responsible for providing the program.  In the very short time since the implementation of MIP, they have taken the initiative to offer the program on-line.  MIP is a scripted session.  As a result, the information you receive at a MIP in Orillia, Barrie, or on-line is the same.

If you recently became a “participant” in Ontario’s family justice system, I encourage you to embrace both the intent and content of this program.  Here are a few suggestions which may help:

  • DO come prepared and on time.  Bring a pen and your Notice, which has a Certificate of Attendance to be completed by the person conducting the session.  There is a handout given to each attendee so if you miss writing something down, don’t worry.
  • DON’T take a friend.  This isn’t a social event and whispering can be very distracting.  Also, due to the number of people who are required to attend this program and local scheduling, seating is limited. 
  • DON’T take your children, either.  A MIP can take 1½ to 2 hours to complete.
  • DO keep an open mind.  You might find that one nugget of advice that will help you to understand the emotions you may be feeling or to adjust to the variety of changes you may be experiencing in your life.
  • DON’T think of this program as some sort of punishment.  It’s not detention and you’re not being singled out.  There are some exceptions but, basically, anyone who is a party in a contested family case has to attend.
  • DO take the time to review the list of resources you will be provided.  One of the organizations on that list may help you, your children or your former spouse
  • DON’T panic if you can’t attend on the date scheduled for you but DO contact the Family Law and Information Centre to reschedule as soon as possible.

A MIP is not meant to provide you with specific advice about your family situation.  You should speak to a lawyer about your situation.

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

A recent Ontario Court of Appeal decision has re-affirmed the principle that if a support payor’s income increases and they fail to reveal this information to the support recipient then they are in jeopardy of having their support obligation increased retroactively so as to result in a significant lump sum payment.

The recently decided case of S.P. v R.P. [2011] O.J. No. 1968 (Ont. C.A.) is a textbook case of what not to do if you are a child or spousal support payor.  In this case the parties had a 1993 Separation Agreement that set the child support (and spousal support) obligation of the husband/father to the wife/mother after 18 years of marriage for herself and the 3 children.  The husband later sought to decrease his support obligation on the basis that he had lost his high paying job as a chartered accountant and partner with a large Toronto accounting firm.  He sought reductions on 2 occasions in the mid-1990’s and the wife must have agreed with the requests given that there had been no court proceedings until the wife’s application in 2007 seeking financial disclosure and an increase in support.

Since the introduction of the changes to the child support legislation in 1995 the courts have relied upon the mandatory income disclosure sections of the legislation to impose positive obligations to provide full and timely disclosure of changes in the incomes of the parties especially where child support is concerned.  In doing so, a theme running through many of the decisions is that child support is a right of the child and parents ought not to deprive their children of what they are entitled to  by way of the potential for improvements in their standard of living which would presumably be reflected by a higher child support obligation.

In this case, the support paying former husband not only had misrepresented his income at the times he sought to reduce his support and he failed to notify the support recipient former wife of when his income increased, he also refused to comply with requests for income information made by the former wife when she suspected the husband had resumed employment and she wished to re-visit the amount of child and spousal support being paid.

The income disparity between the parties was noteworthy.  In some years the husband’s income exceeded $400,000 while the wife’s income was never more than $66,000.  What was also of significance in this case was that the court made the adjustment in support retroactive to 1996 (the time when the husband first asked for a reduction) at a time when he could have exercised some stock options which would have constituted income and justified a continuing child support obligation at the original amount set out in the parties’ 1993 Separation Agreement.

The concept of the husband’s blameworthy conduct underlies much of the rationale for the decision which reaches back 11 years from the date of the judgment.

When advising clients about their support obligations and rights, I always remind them of the positive duty to keep the other parent up to date with changes in income in order to avoid being second guessed by a court at some point down the road.  No one looks forward to paying more, but is for the children’s well-being.

Have you ever heard the expression – “Blew the case wide open”?  This might seem more relevant to a murder trial where they find the smoking gun or perhaps you have watched a CSI episode and suddenly they find that one piece of evidence that magically solves the case.

Believe it or not that can happen in a matrimonial matter as well.  Sometimes the other side will bring a Motion for certain relief and in support of their Motion they file Affidavits alleging certain behaviour on your part.  Your lawyer then asks you questions concerning the allegations; trying to understand what happened.  You will be asked to respond to the allegations by writing out your side of the story. Often clients wonder whether they have written too much or not enough.

In a recent matter, the other party (Let’s call them “Jane”) was trying to deny our client (Let’s call them “Joe”) access to the children based on Joe’s recent behaviours.  Jane felt that Joe should only have supervised access as a result of these behaviours, which Jane admitted were uncharacteristic.  Jane sought such relief in an interim Motion.  

Joe was asked to provide a written response to the allegations made in Jane’s Affidavit so that a responding Affidavit could be prepared. In the response to us, Joe set out all the things he was doing to correct the situation and explanations for what had happened.  At the very bottom of the last page, Joe put in a side note to state that:

  • the medication he was taking was known to cause side effects including the symptoms that had been complained of;
  •  several months ago he had been to the doctor and said he wasn’t feeling better but was told to stay on the medication as it took a while to work.
  • The symptom had ceased since changing the medication.

Eureka! All of a sudden that missing piece of evidence leapt off the page and it became clear what the defense to Joe’s actions were.  An explanation had been provided for the uncharacteristic behaviour.

Joe felt that this information was just a “side note” but in fact it was the most important statement made in the written response provided to us.  As a result we were able to successfully defend Joe against the allegations made and regained unsupervised access to the children.

Remember although you may think the information is insignificant, you should always relay the information to your lawyer.  As long as you are being factual and not emotional, then you can never write too much.  You should let the lawyer you have hired to assist you determine whether or not that information is “insignificant” or whether it can in fact “blow the case wide open”.

Separated but not yet divorced legal spouses should beware of the potential legal effect of a pre existing will which leaves the spouse’s estate to his now estranged wife.

In the recent case of Macarchuk v. Macarchuk the spouses were separated but not divorced. Prior to separation, the husband had made a will naming his wife as his executor and sole beneficiary of his estate.

The couple settled the separation issues by entering into a separation agreement which contained a provision whereby the spouses both released any rights they may acquire under the laws of any jurisdiction to the estate of the other.

After executing the separation agreement, the husband died prior to the parties’ divorce.

Litigation ensued over the issue of whether the surviving wife was entitled to receive the estate pursuant to the Will and to act as the deceased husband’s estate trustee.

The trial Judge determined that the provision in the separation agreement that released rights acquired under law to the spouse’s estates did not apply to those rights acquired under the husband’s Will and found that the wife was entitled to the benefits provided to her under the Will.

The trial decision is significant in that the wife not only received her entitlement to equalization of property pursuant to the separation agreement, but also received the net residue of the estate, as provided by the deceased husband’s Will.

What could have been done to prevent this unfortunately legal result?

The pre existing Will could have been cancelled, either by the making of a new Will, a written Declaration of Intent to Revoke the Will or the destruction of the Will.

A remarriage would also have rendered the pre existing Will null and void.

Careful drafting of the release against spouses’ estates in the separation agreement is also recommended.

Remembering Jack Layton

layton.jpg

This past week we lost a great Canadian.  No matter what your political stripes you no doubt mourned the passing of Jack Layton, NDP Leader.  Jack wrote a final letter to all Canadians.  Many now refer to this as his “manifesto”.  Much of it is political in nature, however, in his final words to all Canadians, he wrote:

“My friends, love is better than anger.  Hope is better than fear.  Optimism is better than despair.  So let us be loving, hopeful and optimistic.  And we’ll change the world.”

These are words that we can all live by.  Jack may have been speaking of how we can all make a better Canada but we can first look at how we can make it better in our own small world.  If we can all do that than Canada as a whole will become a better place.  How might you apply these words to your situation?  Here are some suggestions:

  • Love your family – be there for them.  Family should be your priority.  Work should be secondary.  Learn to hold your tongue rather than say things you may regret.
  • If it is a 2 year old giving you a hard time don’t strike out in anger words can hurt just as much as physical action.  Remember to give yourself a time out during nap time.  The chores will still be there later but you will be better able to handle yourself and the 2 year old if you have taken time to relax whether by watching a favourite TV show, reading a book or napping yourself.
  • Next time that teenager has driven you to the point of despair remember to take that breath.  Tell them you will be back to talk to them when you are both calmer.  Actually set a time to do so.  This will give both of you time to think about things.  Give them a hug.  Teenagers need hugs but often suggest that they do not.  Remember words said in anger are harder to take back. 
  • Define what you are afraid of and seek help.  There are organizations to help you if you are in an abusive situation or if you are suffering from mental difficulties such as depression.  You do not have to fight the battle alone.  Speak to your friends and family and find the resources to assist you.  Be hopeful.  Something better is just around the corner.
  • Don’t think about the grey skies in your life.  Find the silver lining.  Surround yourself with others who have the same attitude.  Smile even when you don’t feel like it.  Your smile will bring others to you.  Negative Nellie’s tend to stand alone. If this is you, then seek counseling to help you deal with your issues and learn to be a happier, more optimistic person.
  • To the larger goal of a better Canada, participate in your community.  Volunteer at local organizations that need your help.  Getting outside of your box will help you realize just how small your problems may be in relation to others or how you can provide help to others.  People helping people is what it is all about.

We will forever remember Jack’s optimism; his incredible feat during the last election campaign while suffering from cancer; and his attitude of “can do” instead of “why me” when faced with yet another fight with cancer.

Live by his words.  Live by his actions – every day to the fullest with love, optimism and hope.

 

In Ontario, there has been much discussion in the media and amongst various legal groups about ‘access to justice’ and how, in particular, the high cost of litigation prevents people from ‘accessing the justice system’.  Recently, the Chief Justice of the Supreme Court of Canada Chief dealt with this issue in her remarks at the Canadian Bar Association Conference in Halifax Nova Scotia. She suggested that lawyers should consider more ‘pro bono’ work – that is work for free. 

There is no doubt that the cost of legal services can have a heavy impact on the family that separates.  From the lawyer’s perspective, there are many reasons why the cost is so high and it might be helpful to the debate to understand how the costs rise so quickly. This article is an ‘in the trenches’ look at the typical family law file and all references to facts are entirely fictitious and are meant for illustration purposes only.  In addition, this article deals only with Ontario Family Law and Practice but there is likely little doubt that the same issues arise in other jurisdictions.  Below are just a few reasons why costs are so high.

  • First, the fact situation. In most cases, there are multiple issues: children, perhaps domestic violence is an issue, various properties including a home, perhaps a small family business, not to mention household contents, and more complicated property items such as stock options, trust arrangements or a defined benefit pension plan. There might be a need to involve other lawyers to assist in determining whether there is a case for other remedies, such as a claim for damages arising out of domestic assault. There is almost always, a fairly complicated issue in determining income for the payment of child or spousal support. This is because, thanks to the current economy, so many people are self employed and often, do not keep very good financial records to establish their true income. In addition, the explosion of the internet age and computer systems generally have added to the complexity of gathering necessary information. In other words, the fact situations today are a reflection of the sophistication of society generally. It is the lawyer’s job, if acting in accordance with the Rules of Professional Conduct, to gather all of this information first in order to properly advise the client.  The information related to the financial issues of support and property division are generally referred to as ‘financial disclosure’ in Ontario.  There are very few ‘easy cases’ these days. Those people who think they have an ‘easy case’ usually sort things out on their own, without legal advice, and therefore often without knowledge as to their legal rights.
  • Secondly, experts are almost always necessary to deal with the issues that must be resolved. For child custody disputes, there is almost always a need to engage a psychologist or counsellor to assist the couple in resolving the issues and developing a parenting plan. With respect to property division, in Ontario, there is a focus on sharing the ‘wealth’ that was generated during the marriage.  While this is definitely a noble principal, there is a problem with this concept. The problem is that, in every case, experts are needed to determine the value of any property. Appraisers for land or personal property, actuaries for pension valuations, business valuation experts for businesses, specialized experts for specialized items of property such as collectables.  Needless to say, experts are not cheap but the diligent lawyer could be held accountable by his professional body if he did not retain them when necessary. Expert’s fees are in addition to legal fees and can add from a minimum of $5,000 in costs to the average case.
  • Thirdly, the time involved in properly preparing the case for the client is the same whether or not the case goes to trial. It is necessary to learn all the relevant facts and gather all the relevant evidence as if the case were going to go to trial. That puts the client in a position of strength during negotiations – he or she knows what she can prove and therefore knows their entitlement.
  • Fourthly, the court system. I think it is common knowledge in Ontario that the court system is not high on the list of government priorities. It is underfunded. There are not enough judges to hear family cases. There is no specialized court set up to deal only with family law cases, although in name, we do have Family Court in 17 jurisdictions in Ontario and we do have Family Court in all other jurisdictions at the Ontario Court of Justice. But, outside the 17 jurisdictions, the Family Court cannot deal with divorce or property issues – it can only deal primarily with children and support issues.  In those jurisdictions, therefore the couple who wants to deal with property or divorce must go to the Superior Court of Justice which is not a specialized court. In several areas in Ontario, it can take up to two years to get to trial on all of the issues. Over this amount of time, the factual issues naturally change – children and jobs and income don’t stay static. When the facts change, the issues change and the lawyer has to  spend more valuable time updating all of the information.  Many steps in the family court system are repetitive – court paperwork has to be prepared and re-prepared. When a case is called on for trial, there is never a set date – your case is always on a ‘list of cases to be heard’. You might be number 200 on that list. The lawyer has to have the case ready for trial because the case might be called. If it not called, it is often adjourned to the ‘next sittings’ of the court, which, in some parts of Ontario could be several months away. So the lawyer may well prepare the case in full spending considerable time on it, only to learn that he will have to refresh his memory in several months time, making sure that the witnesses are all available for that next date and deal with any facts that occur during the interval). Needless to say this takes a toll on the client and the witnesses – they are anxious enough to attend trial and then are deflated when it does not go ahead, knowing that they will have to go all through this again. If the trial is a long one, this process could go on for several ‘court sittings’.  In addition, Judges are pressed for time because there are not enough of them to hear all the cases. So they need the lawyer and the parties to present their evidence efficiently and succinctly – sticking to the issues. They need documentation set out properly and logically so they can quickly grasp any complex points in the evidence. Once again, preparation of this type takes considerable time on the part of the lawyer and greatly adds to the cost of the trial. 

If lawyers are to do their job properly, perform their “due diligence”,  as I hope you can see from the above points, a great amount of time has to be spent, and yes, this is at the expense of the client. But, I do not know of any reputable family law lawyer who gets paid for every hour they spend on a client file.  Most lawyers know that their clients simply can’t afford to pay the fees required for them to act with due diligence in relation to all of the issues. But they also know that they can’t ‘cut corners’ just because the client can’t pay. So the lawyer ‘writes off’ time and does not bill the client or cuts the fee to what the client can afford to pay. In other words, for the benefit of our Chief Justice who spoke so eloquently in Halifax, family law lawyers are already doing considerable “pro bono” work. 

In my next blog, I will try to flesh out some of the other ways that might help clients and lawyers become more efficient, reduce expense and give the client more ‘access to justice’.

DO – come prepared to any meeting including your initial consultation.  Ask before your appointment what material might assist in making your consultation educational and productive.  On booking the meeting, ask if there are handouts or information forms available from the lawyer or his or her staff that may assist you in your preparation

DON’T – expect the lawyer to have reviewed material you send in before your first appointment or retaining the lawyer, unless specific arrangements have been made

DO – use your time with your lawyer wisely.  In most cases, “time is money” –for both you and your lawyer.  Answer your lawyer’s questions succinctly.  If you don’t know the answer, do not guess.  Do not be embarrassed – the answers can usually be found, especially in financial matters.  Guessing only leads to extra work.

DON’T – be nervous, afraid or anxious.  If you are uncomfortable and continue to have a lack of confidence in the  relationship with the lawyer, no matter what his or her reputation may be, he or she may not be a good fit for you. Also, do not forget to ask about other settlement methods – moving from a litigation route to mediation or mediation/arbitration, may change everyone’s demeanour and attitude. If the fit is still not there,  review your options – and let the lawyer know your feelings.

DO – ensure that you are apprised of all ongoing communication between your lawyer and the other side

DON’T – try to make friends with your lawyer, send multiple emails every time you think of things (together with “LOL” and smiley faces).  Do not think your constant calls or emails will speed things up as the “squeaky wheel gets the grease”. This is not only costly, but also unreasonable if you have retained reputable counsel.  Competent counsel will work diligently with you but usually in a priority schedule and also are subject to other party’s dates, mediator availability, court dates, disclosure and production and other circumstances beyond the lawyer’s control.

DO – treat your lawyer’s staff with respect

DON’T – forget to keep your lawyer and his or her staff up to date with any changes in your life such as phone number, cell number ,email, address, job and financial changes and your living arrangements

DO – talk about payments and finances.  Legal representation is expensive. If you are honest about your ability to pay, arrangements can be made in advance – do not wait until you owe the law firm a large amount to be honest – do it at the beginning.  Changing or losing lawyers mid stream can be costly.

DON’T – react to threats from the other side such as “my lawyer says your lawyer……’ or my lawyer always beats your lawyer” – these are simply childish sandbox tactics.  Develop your relationship with your lawyer and don’t be intimidated.  Also, try to avoid the Friday at 5 reaction when there is a threat. This too will pass.

DO – provide all the information (not everything else in your file cabinet) that the lawyer asks for.  This is usually a request for evidence.  Law relies on evidence – not estimates and guesses.  The faster and more clear your material is, the cheaper your fees will be.  It may also help for you to keep a binder with your material and the material provided by the lawyer in an organized fashion.

DON’T – litigate or argue on principle.  Your legal case is based on facts and law, not, fortunately or unfortunately, as you may see it, on morality or fairness.

DO – keep open dialogue with your lawyer and firm.  All parties involved in your matter recognize this. Your lawyer should make you feel respected and valued, but is not trained in your emotional issues.  While being empathetic,  he or she ought to remain professional and fixed on the facts and law.  Good counsel know when their area of expertise is at a limit and ought to be able to refer you to other sources for your needs.

DON’T – be concerned if your lawyer wants to bring in a further consultant – whether a therapist for the children or an accountant or other type of lawyer such as a corporate lawyer or estate counsel.  Knowing one’s limits and recognizing red flags are important qualities of good counsel.

Your relationship with your lawyer ought to professional, reasonably meet your expectations and be a diligent advocate for you.  Remember, there is no perfection in law.  Make sure there is a game plan and your lawyer apprises you of all steps and the cost/benefit analysis of proceeding in the manner recommended.  Be open, honest and respectful and you ought to receive these qualities in return.