Thomas Dart, Partner, Family Law

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

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

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

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

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

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

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

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

Jodi Armstrong, Partner, Family Law

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

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

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

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

Barrie M. Hayes, Partner, Family Law

The Income Tax Act recognizes spousal support payments as a tax-deductible expenditure.

The Act recognizes both married and common- law spousal support payments as tax-deductible. In order to qualify as a tax-deductible expenditure the spousal support order needs to;

1. Be embodied in a court order or written separation agreement;

2. The support payment be made on a periodic (i.e. monthly) basis;

3. The support recipient has discretion as to the use of the support payment.

Separated spouses can, in a court order or agreement, retroactively recognize historic spousal support payments as far back as January 1 of the year preceding the parties’ year of separation.

A spousal support payor can, in accessing the tax credit benefit of the spousal support payments, either claim the spousal support credit as part of the annual income tax filing and receive a larger income tax refund or claim the tax credit during the income tax year which will result in a lower income tax remittance to revenue Canada during the year.

Catherine Hyde, Paralegal

In recent years there has been an increase in separation of couples in the 55+ category.  It seems once the children have left and you start to notice an increase in the people you know in the obituaries, you ask yourself- is this all there is?  Thoughts of separation seep in.  Before saying you want to separate, consider some financial aspects of separation and possible lifestyle changes.

First make a list of what property you own including realty, bank accounts, investments and what debts you have.  Make a similar list for the assets and debts of your spouse.  Look at what your retirement income might be from private pensions and government pensions.   Armed with this information, make an appointment with a family law lawyer.  The lawyer should be able to provide advice on a broad basis as to what your entitlements might be on a property division and whether spousal support is a possibility, for whom, and in what quantum and duration.  All of this is subject to actual financial disclosure. 

Having all the facts you can weigh whether going it on your own is feasible.  The emotional issues and the financial reality must come together in making your decision. Counselling might be the answer for you. Attempting new things outside of your comfort zone might bring back the spark.  If not, and separation is the route, ensure you follow through with your lawyer to enter into a separation agreement that ensures you achieve an equitable settlement.  

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

There certainly has been a lot of media attention and commentary about the process and evidence in the criminal trial involving media personality Jian Ghomeshi.  But I am not writing about whether the alleged victims were treated fairly or whether the scope of the evidence was too broad or too narrow.  Rather, I was struck by how much evidence there was from Emails and other forms of electronic communications between the alleged victims and the accused and how that evidence was used in the trial.

If I recall correctly, Mr. Ghomeshi’s defense team was able to put their hands on numerous Emails going back over 10 years (as well as more recent emails and texts over the past couple of years between the complaints and Mr. Ghomeshi and others).  I was struck by how effective this bundle of evidence was, at least in the court of public opinion and in the media reports.

I immediately drew parallels in my mind to how relevant and effective this type of evidence has been, and could be, in a family law matter where history and credibility might be at issue.  Let’s consider an example.   In a child custody case, one parent might raised the issue that the other parent has been disinterested in the children for years and has never “pulled their weight” in terms of the day to day tasks that parents are required to perform for their children.  Yet there might be a string of Emails over the years from the complaining parent to the other parent, or other friends or relatives singing the praises of the other parent as a caring, committed, involved and child-focused parent.  Sort of a “parent of the year” characterization.  Or some of the emails may just be coordinating tasks for the children between parents – who is taking the children to appointments, their extracurricular activities, shopping, etc.

If the parent being accused of non-involvement has kept those Emails, or can get those Emails, from the internet provider, then he or she can make good use of this “evidence” to poke holes in the picture the complaining parent is trying to paint and, in doing so, this might have a side-effect of diminishing the credibility of the complaining parent.

Over the past 15 years or so of practicing family law I have developed the habit of advising clients to be very careful of what they put out there on the internet, whether it be Emails, Facebook post, Instagram messages etc.  Once it is “out there”, it is very hard (impossible) to get it back.

A word to the wise.

David Harris-Lowe, Partner, Family Law

Going through a separation or divorce is often a really challenging experience. It can be legally complex, emotionally challenging, and financially draining. You’re under pressure and it’s tempting to cut corners by handling the separation and divorce without the assistance of a lawyer. Too often this leads to bad Agreements which aren’t enforceable.

A good family law lawyer can help in several ways. Obviously, lawyers should know the law and be able to apply the law to your particular situation. This means knowing more than just basic family law. Your lawyer also needs to be informed about tax law, insurance law and trust law to name a few. But it’s more than that. Your lawyer can also help you in the following ways:

  • Identify what your interests are and will work with you to develop a realistic plan to achieve them.
  • Act as a trusted advisor. This means letting you know what your rights are and assisting you in seeing beyond the immediate problems of a divorce or separation.
  • Are about you and your situation, but not to the point that it interferes with good judgement and advice.
  • Be able to follow through with negotiations, mediation, arbitration or litigation as needed. This means knowing how to negotiate and, if needed, how to gather up and present evidence in a compelling way.
  • Handle the mechanics of writing an enforceable and lasting agreement.

If you or someone you know is going through a separation or divorce, it’s usually a smart idea to speak with a lawyer early in the process.

Evelyn Thompson, Family Law Clerk

 

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

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

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

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

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

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

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

Thomas C. Dart, Partner, Family Law.

If you are separated and have either a court order or separation agreement under which you have to make support payments to your ex-spouse, you may think that, once you retire, you won’t have to continue making your payments. Well the answer is, it depends….

 The law says you can change the support payments in a court order or agreement if there is a “material change in circumstances”. It also says you can’t get out of support obligations by making unreasonable decisions about your employment. If the court feels you are shirking your responsibilities by retiring, it will ‘impute income’ to you and then make an Order that you pay support based upon your ‘imputed income’.

 For example, in a reported case here in Ontario, a man who was married for 28 years entered into a separation agreement with his wife under which he was obliged to pay spousal support. Six years later, he decided to retire at age 55 as his pension plan allowed him to take full pension when he attained that age. He had had a heart attack and had told his wife before the separation that he planned to retire at age 55. The court held that it would not reduce the support payments at all as, in the court’s opinion, there was no valid reason to retire. The medical evidence did not support his claim that he had to retire for health reasons. The court was not going to let him off the hook after paying support for only six years after a 28 year marriage. The husband had he thought proactively brought the application to reduce the support before he attained the age of 55 in the hope that his support payments be reduced or stopped when he did actually retire. So when the Judge made his decision, the husband was at least able to keep working. In some respects he was ‘lucky’, although I doubt he would agree.

In another case, though, where a man applied after he had retired, the court held that it would not reduce the support as it did not think his retirement was reasonable and he was too young to retire. The court therefore ‘imputed income’ to him in the same amount as he was making before he retired, that is, although his retirement income was much lower, he still had to pay spousal support as if he were still working and making the same income.

So if you plan to retire, it might be a good idea to get legal advice on what might happen to your support payments.

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

So you want to “win” your child custody case?  Here are some do’s and don’ts:

  1. The most successful party is almost always the more cooperative parent:  Avoid picking fights with, or escalating fights with the other parent.
  2. Basic care for the children should be of high quality:  Make sure your child is returned to the other parent in clean clothes, with good hygiene, etc.
  3. Avoid saying anything negative to the children about the other parent, or the other parent’s friends or family:  Obviously children can be hurt by hearing negative comments about the other parent, whom they love.
  4. The children’s toys and clothes belong to the children, no matter who paid for them:  The child has the right to control their own belongings.  If items don’t get returned from the other parent’s house, this is an issue between the parents, not the child.
  5. If the two parents are together in a public place, the children should be allowed to talk freely to both parents.
  6. Information about the children should pass freely between the parents:  It is in your child’s best interests that both parents know about the child’s health, homework, etc.
  7. Some advanced thought about communication between parents may save a lot of difficulties:  Consider and discuss whether you want to use texts, email, a communication journal, etc.
  8. Do not, under any circumstances, use the child as the messenger.
  9. Children should be free to speak to the absent parent.
  10. Don’t share confidences with the children about your own feelings.

Barrie Hayes, Partner

 

There is no doubt that hiring a lawyer to represent you in Family Court can be a very expensive undertaking.

One alternative to entering into a comprehensive Family Court retainer with a lawyer is to retain the lawyer to provide a specific service or undertaking in relation to your Family Court proceeding.

Limited retainer, or bundled legal services, is an arrangement wherein the client retains a lawyer to assist in a predetermined level of legal services. The legal services could be limited to the preparation of one or several of the necessary family law pleadings (i.e. financial statement, application, affidavit) or involve retaining a lawyer to attend only on specific court appearances.

Our firm, which engages in providing bundled legal services, can provide cost efficiencies by assigning the preparation of pleadings by assigning the preparation of the documents to clerks or paralegals who are supervised by family law lawyers.

A client retaining a lawyer on a bundle legal services basis is usually required to execute a retainer which clearly defines the nature and extent of the legal services the client is retaining the lawyer to provide.