Facebook has become an everyday word. Who doesn’t have a Facebook account nowadays? We use Facebook to keep in touch with friends, to share photos with family members across the globe and sometimes, we use Facebook to vent. What harm can a little Facebook post cause anyway, right? The answer may surprise you, especially when examined in a matrimonial context.

Take for example, a case wherein a husband has argued that he cannot work because of debilitating knee pain and therefore requires indefinite spousal support. His argument would be crippled if his ex-wife were to see the photographs he just posted of him skiing (in a tightly crouched position) and dancing on top of tables.

Then there is the case with the wife who argues that she should not have to surrender her children’s passports because does not present a flight risk. Low and behold, with a little due diligence, her husband discovers her Facebook wall postings which describe the fantastic life that she and the children will have after their move to Switzerland later that week.

Granted, these are extreme examples. However, they do happen.  A simple internet posting can be severely damaging to one’s custody or matrimonial dispute, especially when it ends up as an exhibit to the opposing party’s Affidavit. It is very hard to back pedal from statements made and even harder to dispute photographic evidence.

Facebooker be warned – tighten up those security settings to limit those people who can view your profile. Better yet, think twice about what you post.

Though each circumstance is unique, the typical course of events following a separation is for the parties to proceed through a dispute resolution process before a divorce is sought and granted. It is usually the dispute resolution process, whether negotiation, mediation, arbitration, collaborative, or court, which requires your time, energy, and money, not the ‘divorce’ per se. The divorce is often the final step in the process.

This may result in-part from the fact that the most often claimed ground for divorce in Ontario, namely that the couple has been separated for one year, requires the parties to wait to complete the divorce. Note there are a couple circumstances, namely adultery and cruelty, which allow divorce applications to be brought before one year. However, nowadays few parties claim these grounds as the basis for the divorce. See Jodi Armstrong’s post “Adultery: Finding the Proverbial Lipstick on His Collar” for further information regarding the three grounds for divorce.

There are also circumstances where parties may choose to sever the divorce from the other matters being resolved, such that the divorce precedes the determination of the final terms of the settlement or court order. This is also a relatively rare occurrence, but may take place when the settlement process or court proceedings are taking particularly long, or one or the other party wishes to remarry.

Thus for the majority of couples the divorce is the Grand Finale. Yet, in Ontario the reality is that a final uncontested divorce is usually relatively administrative in nature. Having practiced family law now for almost five years I have observed that this final step can feel quite anti-climatic to some clients. You may have spent years in the dispute resolution process leading up to The Divorce, only to find that to have the divorce completed requires just the signing of  a couple basic forms. I have had more than a few clients respond to this situation by asking me somewhat perplexed, “That’s it?”

I have joked to clients that perhaps our firm should be sending them some wine or flowers with the issued divorce, much as realtors do after the sale or purchase of a home. Though I acknowledge that for a myriad of reasons, and depending on the circumstances, such a gesture from a lawyer’s office would be entirely inappropriate.

Which is why I take such an interest in articles regarding ‘the Divorce Party’. The Divorce Party appears to be gaining in popularity. There is even a Wikipedia page explaining the phenomena. The Globe and Mail recently published an article regarding the Bronfmans’ Joint Divorce Party.

There are even Divorce Party Planners that suggest some quite ‘creative’ cakes and activities. Though, particularly where the terms of the settlement or order have yet to be fully and finally determined, I would caution against any behaviors that might be interpreted as threatening towards the ex-spouse or the destroying of joint property.

Perhaps, for some, this type of event will more satisfactorily mark their change in marital status, than any seal on a piece of paper.

Baby cryingThe morning started off much like every other weekday morning.  It was a Monday and my husband merrily waved goodbye as he set out for work leaving me to wrangle our two three-year olds into getting dressed, into eating breakfast, and, eventually, into the car.  Once that was accomplished, I assumed I was good to go.

We were about half-way to daycare when my son announced that he needed to go to the doctor.  Since he was running around like a maniac moments earlier, I was dubious.  When his alleged ailment went from a sore ear, to a sore elbow, to a sore throat, my skepticism continued to grow.   

He threw a colossal fit when I tried to drop him off.  A fit that was on such a grand scale, I really wavered about leaving him.  He and his sister love daycare and, normally, as soon as they have each granted me my requisite hug and  kiss they are literally shooing me out the door so that they can get on with their day.  His tantrum was totally out of character, so I was concerned, but really reluctant to give in to it.  I left him, still hollering, after reassuring the childcare provider that I was in the office that day and that, if he did not improve, she could reach me there.

I wasn’t at work for long before I got the phone call and headed back to daycare feeling like the worst mother on the planet.  He was, I was advised, still beside himself and demanding to see a doctor.  The guilt when I saw his little swollen-eyed face was unbelievable.  How could I have possibly doubted that angelic little boy?  Something must be wrong.

By the time I got him to the car, the tears had disappeared.  As we drove to the walk-in clinic, he was yabbering away and getting perkier by the minute.  Walking into the clinic, he was practically dancing beside me and he had something to say to almost everyone we walked by.  He apparently felt it was his job to provide comic relief to the waiting room full of sick people.

Needless to say, my suspicions had returned. 

I hesitantly handed his health card over and anchored him on my hip in order to keep him stationary.  When he actually stuck his head through the little window at reception and advised that, “he was all better” I knew I had been scammed by a three-year old.  As I made a sheepish but relieved retreat, he gleefully, and at the top of his lungs, told his waiting room audience, “I am a pain in the butt” (guffaws all around) and then quite happily got returned to daycare.  He shooed me out the door as usual and we haven’t had a problem since.

Moral of the story:  Listen to your children but keep in mind that even your own angel-faced cherub of adorableness may have a hidden agenda for saying some of the things he or she is saying.

In my case, I honestly think my son had just really enjoyed his weekend and, on that particular Monday morning, he did not want the weekend to end.

For separated parents, it may be wise to remember that the stories children tell about what goes on in the other parent’s home may not always be 100% accurate.  Events may get distorted and exaggerated when conveyed from a child’s perspective and, when there is conflict, a child may be seeking to please one parent by speaking negatively about the other.  

I am not suggesting that anyone should ever ignore or dismiss what a child is saying.  I certainly don’t regret verifying that the elbow/ear/throat ailment was an elaborate hoax.  I am suggesting that children do, on occasion, give parents a skewed version of reality and that it may be worthwhile to consider that as a possibility before making your own accusations and leaping into action.

The Business Interests section of a Financial Statement is often what I call a “work-in-progress”. 

In today’s economy, it is common that a spouse will be self-employed, working for his or her own sole proprietorship or a partnership.  This partnership can be with the other spouse or a third party. 

Also, on the advice of an accounting or legal professional, a spouse may have incorporated one or more companies in order to maximize tax planning or to protect family assets from business creditors.  These are often referred to as “private” or “closely held” companies.

Determining a value for such a business interest can be an involved process.  At the start of litigation, often the party who owns this type of asset will claim that it has little or no value.  Until an amount can be agreed upon or determined by a valuation, the term “to be determined (tbd)” can be inserted into a Financial Statement.

Regardless of how relevant or active you may perceive these companies, it is important that you fully disclose the existence of all of your business interests.  As discussed earlier, failure to do so may have a significant impact on you if it is discovered by the other side through independent research.

It is the sole obligation of the spouse who has a business interest to produce all pertinent information to support his or her value.  These can include:

  • in the case of an unincorporated business, personal Income Tax Returns, which must include a Statement of Business Activities
  • provincial and federal tax returns for each corporation
  • Financial Statements, often prepared by the company’s accountant
  • copies of any Agreements, such as Shareholder’s or Partnership Agreements
  • bank and credit card statements

After reviewing this documentation, the non-titled spouse will have to decide how much will be invested, in both time and money, to establish a value.

As with real property or pensions, a valuator may have to be retained to establish a value.  Depending on the nature of the business and its potential worth, this can include an accountant or a Certified Business Valuator.

In an earlier blog post, Samantha Cain commented on the law that is often applied to grandparents who might wish to preserve their relationship with their grandchildren after the grandchildren’s parents have separated.  As Samantha indicated, there is no automatic right for grandparents to maintain their relationships with their grandchildren – whether it is before or after their parents’ separation.

The question of whether grandma or grandpa should spend time with Jimmy or Janey almost never comes up when a family is together.  They just figure it out.  Sometimes the grandparents even live with the family.  Other times, a grandparent may be so dysfunctional that both parents agree that they will not allow the children anywhere near the “crazy ol’ coot”.

However the issue arises more frequently and more poignantly after parents separate and grandparents, who had had a perfectly healthy relationship with their grandchild, are suddenly frozen out of a continuing relationship.

Under the current law, grandparent may only advance an access claim if they can demonstrate to the Court that they had a meaningful relationship with their grandchild.  If they can satisfy this test then they will have “standing” to bring an access claim.

In Ontario the Courts have, at times, been cautious in awarding grandparents a right of access.  The Courts have been concerned about the possible disruptive influence grandparents may have on their grandchildren.  On the unspoken theory that “blood is thicker than water” the Courts recognize the risk that grandparents may not be able to “mind their own business” and attempt to influence the affections of their grandchild with respect to the child’s parents.  It is not too hard to imagine that the paternal grandparents might wish to bolster their own son’s image in the eyes of their grandchild or diminish the importance of the child’s relationship with their mother.

On the other hand, if grandparents have had a history of “minding their P’s & Q’s” as it relates to their son and daughter-in-law and simply wish to maintain a healthy child-focused relationship with their grandchild then a Court may be more likely to determine that it is the “best interests of the child” that the grandparent-grandchild relationship ought to be maintained.

Recently a Private Member’s Bill, Bill 22, has been introduced in the Ontario Legislature that would grant grandparents automatic standing to bring a court application regarding visitation with their grandchild.  The Bill amends the Children’s Law Reform Act.  Section 20(2.1) of the Act would require parents to refrain from unreasonably placing obstacles to personal relations between children and their grandparents.

The Bill goes on to indicate that one of the specific factors that a Court is to take into consideration in making a determination that is in the “best interests of the children” will be “the importance of maintaining emotional ties between the child and his or her grandparents”. I think the key word here is “maintaining”.  The goal of the Bill is not to create a new relationship for the child but rather to preserve what is already an important relationship.

Another provision of the Bill would require the Court to give effect to the principle that a child should have as much contact with each parent and grandparent as is consistent with the best interests of the child.  I am not sure how this provision will be interpreted by the Court.  On an initial read, you could argue that parents and grandparents are on an equal footing in terms of how much time they might be entitled to spend with a particular child.  There is no mention of a priority being given to the time a parent is to afforded with his or her child in comparison with a grandparent.

While the Bill is not yet law and if it is not passed into law before a provincial election is called it may never become law, the enactment of this Bill may provide some interesting considerations for Courts faced with a grandparent’s application for access to their grandchild.

I bought a new vehicle in August last year.  Instead of getting letters telling me when to service the vehicle, my car now tells me with the picture of a wrench and what type of service is required when it is time. Technology!  The light recently came on so I went up to the dealership first thing in the morning before work.  I was quickly attended to by the Service Advisors.  I explained this was my first attendance with my car and just wondered if anything else was required.  They said no, a simple oil change was sufficient and it would be about 25 minutes. 

During my short time in the service bay area I was greeted by each of the representatives, all with smiles on their faces (and frankly none of them were too bad to look at).  I was told I could wait in the waiting room and help myself to coffee etc.  I went in and had a great deal of difficulty with the coffee machine – largely due to my impatience with machinery – however, first one  of the service receptionist came over to help me and when we still had difficulty the second one came over.  Both were extremely polite and I got my coffee – smiles all around.  My car was ready before the 25 minutes was up.  This was a great start to my day.

Unbeknownst to me my husband was also at the car dealership with his truck.  He let me know that he had great service that day.  In addition to his coffee there were sweet treats from a local bakery (cross marketing!), and free movie tickets.  He had a question concerning his vehicle and when the service people were unable to answer it, he later received a call from the salesman who sold him the vehicle answering his question.  He also was quite pleased all around.

You see in addition to providing the actual service of the oil change, they provided great customer service.  We both had an excellent experience.  It didn’t matter to me that I didn’t get the same freebies – even when he told me about them – because I had a great experience. The Service Department made me feel welcome and that I was not troubling them.  I had no appointment as I was able to utilize the express service yet time was taken to explain whether additional work was needed and what my next service visit would entail.

Business is extremely competitive these days – whether it is a law office or any other type of business, it is important to remember that customers make your business.  It is important to have knowledgeable people on staff to assist customers but it is also important to have in place those extras that will make people feel comfortable in your business.  This will ensure that they will refer your business to their friends and relatives.

It is a small thing to ensure that your staff welcome all clients who may be in the waiting room or walking the halls, to offer coffee or other beverages and to attend to their needs in a timely fashion.  I know that I will make a greater effort to ensure that I greet people when I see them. 

Take a look around your business and see what steps you might need to take to make your clients or customers feel satisfied with the service you offer and which will make them want to refer you to others.  This is how your business will grow.

Thanks to my dealership I received an oil change for $45.00 and a lesson in business skills – priceless!!

A Guest Blog by Joanne McPhail

When shareholders are negotiating the terms of a Shareholders Agreement, often we will discuss whether to add their spouses as parties.  The reason for this is that for sections of the agreement, like the death buy/sell or the marital breakdown provisions, we often want to have the spouses of the shareholders agree on terms ahead of time so we don’t end up trying to enforce an agreement against a spouse who doesn’t feel obliged to cooperate.  This issue is always a bit sticky because, of course, issues like death and separation are often tough things to talk about.  To avoid the whole discussion, some shareholders opt not to add the spouse as a party and take their chances on enforceability down the road. 

For those who do add their spouses in, it is then recommended that, once the Agreement is finalized, each spouse make an appointment with their own lawyer for “ILA” or independent legal advice.  If we don’t have the spouse get their own advice (and often a certificate proving they received it), the shareholders run the risk of the Agreement being unenforceable down the road, as against the spouse.  A spouse could argue that they did not understand what they signed and, if they only received advice from the corporation’s lawyer, there was a conflict of interest.  Going to all the trouble of negotiating and preparing an agreement like a Shareholders Agreement, and then having some of it be unenforceable, is not likely the result most shareholders are looking for.  Certainty is the name of the game.  Thinking about these issues ahead of time, makes good business sense.

Joanne practices in the areas of business law and real estate and is certified by the Law Society as a specialist in corporate/commercial law.  For more business-related articles by Joanne, visit her blog at http://gettingbusinessdone.blogspot.com      

Part 4 of the Succession Law Reform Act (“SLRA”) answers this question in the affirmative.

The SLRA provides that, in the event that a person dies, with or without a will, in circumstances where the deceased has not made adequate provision for the support of a dependent, the dependent may initiate a proceeding against the estate for an adequate provision for support.  The legislation does not contain a definition of what constitutes an adequate provision.

Persons entitled to claim this relief are all those who, at the time of the deceased’s death, the deceased had an obligation to pay support for.

A dependent can be a spouse, married or common law (cohabiting for at least three years or in a relationship of some permanence from which a child or children were born), a same sex partner, a parent, a child or a sibling.

The claim for support must be made within 6 months from the date of the issuance of a Certificate of Appointment of Estate Trustee, with or without a will.

The legislation requires the issue of support entitlement to be dealt with on a two step basis.

  1. The court must determine that the deceased did not make adequate provision for the proper support of the dependent.
  2. The court must determine what amount of support is adequate in the circumstances.

The legislation sets out a number of factors that the court should consider in determining the issue of dependency.

The main difference in calculating the amount of support between a claim for support when the support payor is living vs. support under the SCLRA is, in calculating support where the support payor is living the support payor’s income from all sources is the consideration examined. The amount of support under the SCLRA is based the value of the assets of the deceased’s estate.

The income and assets of the dependent claiming support are also examined in considering the adequateness of support.

The court has broad discretion in arranging for the provision of support. The court can fix an amount of support and suspend the distribution of assets in order that the estate assets continue to generate income for support purposes. The court can set aside certain assets to be held in trust for the benefit of the support claimant for so long as he or she lives. The court can transfer title to a portion or all of the estate assets.

The legislation, in determining the extent of the deceased’s estate for the purpose of payment of support directs that assets which would not normally fall into the deceased’s estate (ie: life insurance, joint property with right of survivorship, gifts mortis causa (death bed gifts)) form part of the deceased’s estate in determining the amount of support.

Thanks to the Internet, we have access to so much information about just about everything. The benefits of information and how quickly we can get it are obvious. So the internet is one tremendous tool and it is truly causing a revolution in education for our entire society. The revolution is affecting every institution from the governments of repressive states like Libya to the family court system in Ontario.

Information empowers us to believe that we can do anything ourselves.  For example, a few years back, I wanted to do some major renovations to my cottage. I am by no means a builder but, thanks to some very good information from the internet, I was able to find some planning software that allowed me to draft building plans for the remodeling. I also have all kinds of books on plumbing and wiring and carpentry. I felt that I might need a few more tools, but I was sure that I could do what I had in mind either on my own or with a bit of help from some very skillful relatives.  Overnight, in my mind, I became an expert. Not being a developer or builder, I took my plans to the building department at the local municipality expecting instant approval. But then, the real education began. The friendly municipal folks referred me to a person who had real skill at drafting building plans. From his experience, he was able to advise us about the building codes, the need for proper building permits and how to get them, which led in turn to trying to understand the building and zoning requirements necessary for that approval. We also found out that our planner’s plans did indeed have to be stamped by an architect.  I also began to understand that my perspective on my level of skill to actually do the building was very much misguided. After several months, I was getting very frustrated and wondered why I just did not ignore all the building codes and municipal by-laws and just build the cottage the way I wanted, damn the consequences. Fortunately for me, I hired a proper expert, including an architect and a builder, and, finally able to get final approval and build a lovely cottage. Had I built it on my own, of course, it would not have been nearly so attractive to start with and had I ignored the building code and zoning requirements, the municipality could have legally ordered me to take it all down and start all over.

Taking a case to court, unfortunately, is at least just as difficult as building a cottage. Although you don’t need a licence to act for yourself, and you don’t for some crazy reason need any government or other approval to go ahead and act for yourself, it might be wise to consider retaining someone who does have a licence. I realize I am speaking from a biased perspective – I am a family law lawyer. If you hire me you have to pay me and that expense can be very high if the issues facing you are significant and difficult.

Lawyers know that many people cannot afford the cost of proceeding into family court with a lawyer at their side all the way through, especially if the problems facing you are hard fought by the other side.  So what can you do? You are likely going to hurt yourself if you represent yourself and yet you can’t afford the high cost of the lawyer.

There are solutions, even for this difficult problem. Here are some of them:

  1. Consider going to a qualified family mediator – one who has accreditation from the Ontario Association for Family Mediation, or the ADR Institute for Ontario or Family Mediation Canada. See for example this site where you can find someone in your area who provides this service.
  2. Learn more about mediation before you enter that process – see the government web site.
  3. Get a consultation from a lawyer to understand how the law impacts your personal situation. Ask for an assessment of your case. A lawyer can usually quote you a ‘flat fee’ to provide such an assessment. The assessment should also provide you with a strategy for further action.
  4. Ask the lawyer to help you ‘do it yourself’. Lawyers can be retained to act for you on the basis of what we call ‘unbundled legal services’  which means that they do not have to act for you throughout the entire court process but they can help you draft your court documents, and help you along the way on an ‘as needed’ basis.
  5. Consider entering into the collaborative law process – stay out of court and use lawyers and other professionals to create a proper agreement which attempts to serve both parties interests. Learn more information on this process via this helpful website.

The main thing is to remember that no matter how much we can learn from the Internet, we can’t learn what experience teaches. If I built 50 cottages, I could certainly build another but my first and only cottage should be built by proper qualified folks who know what they are doing and who know how to help. Whether I do it myself or whether I do it with help, there is still going to be a cost – whether that cost will be effective in getting the job done depends on who does it.

Family law proceedings are challenging for all parties involved. Often times statements and allegations are made, either in court or in a party’s pleadings, which are hurtful and untrue. I have had a number of clients ask me whether they can sue the person making these comments (usually their spouse) for defamation. Unfortunately, the answer is almost always ‘no’.

People involved in legal proceedings have what is called ‘absolute privilege’. Absolute privilege is a complete defense to an action for defamation as long as the defamatory statements were made in what is called the ‘ordinary course of the case’. If the defamatory statements were made after the case has concluded or are in no way connected to the legal proceeding, they may not be protected by ‘absolute privilege.’

Absolute immunity is necessary for the search for the truth. If people are going to appear and testify openly and freely in court, they need to know that they can do and say without fear of being sued for defamation. 

Thus, a party is usually protected no matter how malicious, insulting or defamatory his or her words or actions have been.