David Harris-Lowe

Associate, Family Law

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

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

Barrie Hayes, Family Law Partner.

The Family law act provisions in relation to equalization of net family property require that the parties account for and value family assets which existed at the date of marriage and date of separation.

The date of marriage is easily established, but fixing the date of separation, on occasion, can be problematic. Separated spouses sometimes propose different dates of separation, particularly where the spouses have continued to cohabit following separation.

In the majority of separation situations if the dates of separation in conflict are only a few months apart the issue is largely academic since the value of the family assets will not be materially different from one date of separation to the other. In those situations it is, for the most part, expedient to agree to one date in order to settle the issue without litigation.

In the event that the parties are unable to agree to a date of separation, particularly if there is a significant period of time between the two alleged dates of separation, the court will need to decide, after hearing evidence on the issue, the date of separation.

In making a finding of the date of separation the court need only determine that one of the parties has, by his or her conduct, separated from the other spouse. The court, in making a finding of the date of separation, need not make a finding that the spouses have mutually agreed to separate.

Evidence of one spouse retaining a lawyer to commence separation proceedings is normally sufficient to warrant a finding of date of separation.

Physical separation by one of the spouses is frequently found as the date of separation.

In situations where the spouses have continued to live together following separation, the courts have determined that the spouses are separated if the court was satisfied that the spouses had, while living together, withdrawn from intimacy, from providing each other with household services (i.e. laundry, making meals), and if the couple had held themselves out to society in general as having separated.

David Harris-Lowe, Associate, Family Law

The Ontario Court of Appeal made a decision in the case Virc v. Blair this past May.  It raises questions about the circumstances when a separation agreement can be set aside.  It’s also a cautionary tale about negotiating a separation agreement properly in the first place.  The parties in this case separated in early 2008 and signed a separation agreement a few months later.  Ms. Virc did not get legal advice and the financial information provided by Mr. Blair was at best poor and at worst intentionally inaccurate.  Two years later Ms. Virc commenced court proceedings to set aside the separation agreement.

So when can a separation agreement be set aside?  How do you avoid having an agreement set aside in the first place?

A separation agreement can be set aside if:

a)    the agreement doesn’t meet the requirements for a valid separation agreement;

b)    a party fails to disclose significant assets or debts, a party didn’t understand the nature or consequences of the agreement or otherwise in accordance with the law of contract; and,

c)    a court exercising its discretion finds the agreement is basically unfair when compared to the parties’ rights under the law.

If the negotiation of the agreement has problems and if the agreement is basically unfair (compared to your legal rights) then the work of reworking the agreement begins.  This means exchanging accurate financial information and there’s a good chance a court application will follow.  In the right circumstances, this is the appropriate step to take.

In Virc v. Blair, the Court of Appeal was only deciding whether Ms. Virc’s application to set aside the separation agreement could proceed.  Six years after their separation and four years after the separation agreement was signed and they’re only just at the beginning of the process…

The real point is that when you’re negotiating a separation agreement in the first place both parties should retain a lawyer and make sure you exchange complete and accurate financial information – even if this means exercising more patience than you want to.  Hiring a lawyer and exchanging financial information ensures you get proper advice regarding property division, child support and spousal support.  It ensures that you understand what you’re signing and why.  It also results in an agreement that is more effective and lasting than one without legal advice and financial disclosure.

Thomas Dart, Partner, Family Law

We are in the midst of an Ontario election. The campaigns of the three leading parties can only best be described as adversarial. As voters, we should ask: Is the adversarial nature of the campaign helpful to the governance of Ontario? I think most of us would answer most emphatically in the negative.

We have numerous problems in Ontario mostly caused by a declining economy. Is the best method of solving these problems competition between adversaries? What if the three parties got together and collaborated – throwing their resources and obvious intellect at finding a common solution to these problems? What if they involved some grassroots members of our society? In other words, can we change the cultural norm where we automatically think that the adversarial system will lead us to a positive solution?

Similarly, in the family law field, many more professionals who are involved in assisting families with relationship breakdowns are beginning to seriously question the adversarial system as the best method to resolve family law problems. In fact, for many years now, family law lawyers have been using non-adversarial approaches to the resolution of family law disputes. Governments are also beginning to shift family justice resources toward mediation services.

In April, 2013, the National Action Committee on Access to Justice in Civil and Family Matters noted in its report that, its “vision of a family justice system and the recommendations for change” should be based on several guiding principles[1]:

  • minimize conflict – programs services and procedures should be designed to minimize conflict and its negative impact on children.
  • Collaboration – program services and procedures should encourage collaboration and consensual dispute resolution should be at the center of the family justice system provided that judicial intervention is readily available when needed
  • client centered – the family justice system should be designed for and around the needs of the families that use it
  • empowered families – families should, to the extent possible, be empowered to assume responsibility for their own outcomes
  • integrated multidisciplinary services – services to families going through separation and divorce should be coordinated, integrated and multidisciplinary
  • early resolution – information and services should be available early so people can resolve their problems as quickly as possible
  • voice, fairness and safety – people with family justice problems should have the opportunity to be heard and receive the services and processes that are respectful, fair and safe
  • accessible – the family justice system has to be affordable, understandable and timely
  • proportional – processes and services should be proportional to the interests of any child affected, the importance of the issues and the complexity of the case

Family breakdown affects most of us in one way or another over the course of our lifetime. Those of us who have never separated certainly know a good friend or close relative who has experienced a relationship breakdown and we have witnessed firsthand the suffering which it can cause. When we recognize that 40% of marriages break down, we can assume that probably another 30% of the population experiences the repercussions. Grandparents lose rights to see their grandchildren, for example. The divorce breakdown rate does not take into account the number of common law relationships that fail as there is no means to track those. So the information we have regarding the percentage of families who actually experience family breakdown is probably low. We all know as well that children suffer the most when their parents separate.  Family breakdown impacts so many other aspects of our society – it can create physical and mental health issues, job loss, engender criminal conduct and so on.

There are several groups, consisting of lawyers, mental health professionals and judges, at work trying to convince government that these issues should be an essential part of the current Ontario election platforms of all parties. One group wrote a letter to all three political parties asking them to put this on their agenda.  Other groups are meeting with government and among themselves to strategize implementation of the reforms. The Liberal party has at least put the issue on their platform – but it is not getting much publicity. It was not even mentioned in the recent debate. In any case, the parties should not make this yet another adversarial issue – all three parties should adopt this platform – no more studies are needed – action is required now.

A collaborative effort for reform among the leaders of our Province would signal to our families who are suffering that they can set aside adversarial differences in the interests of improving their lives. That signal would perhaps begin that major shift in culture which our National Action Committee has so strongly endorsed. Who will speak for our families? Who will help them? Where is our leadership?

 

[1] Meaningful Change, Beyond Wise Words, April 2013, pp. 3-4

By Douglas Manning, Partner, Certified Specialist in Family Law

In these days of ever-increasing complexity insocial media.png how we communicate (and perhaps why we communicate) couples might be well-served to discuss the “Rules of Engagement” in how they use their social media accounts.  Relationships are hard enough as it is, but now with the rise of social media, a whole new level of communication, and mis-communication, is possible.

Some couples are discussing and considering setting down what is acceptable and not acceptable in terms of what they broadcast to the outside world both during their relationship and in the event the relationship should end.  For example, is it OK to send out a tweet or post about your spouse’s botched dinner or the unflattering pair of jeans they decided to wear to your aunt’s birthday party?  What about that photo you snapped of them while they slept with their morning “bed-head” hairstyle?  Is it fair game to post this on social media?

Some couples have insisted that they discuss, and agree upon, the ground rules for what can be done and what can’t be done with these kinds of photos and personal vignettes.  Some spouses have started insisting that their partner seek their approval before posting photos or comments that include them that are of a personal nature.  There may also be security or safety reasons to have an understanding with your partner about the types of things that you are content with being posted.  For example, if your spouse travels a lot for business and you are left home a great deal of the time, you might not want your spouse posting comments or pictures of where he/she is thus notifying the world that you are home alone.

In the circumstances of a relationship breakdown, the temptation to post embarrassing photos or comments regarding your now ex-spouse for all the world to see may be irresistible.  What happens when a former partner decides to put every intimate photo taken of the couple on Instagram when they break up?  Many of us know of the ugliness that can erupt during a relationship disintegration so do you want to have this littered all over the internet for all to see?

This is why some relationship experts suggest that you and your significant other establish guidelines as to what is fair game to post both during the good times in the relationship as well as the bad times when the relationship goes south.  You can consider rules for determining what is off limits (no discussion, just doesn’t get put out there) and what sorts of items/photos/stories need prior approval of your partner before posting.  If you think about it, the themes of privacy and boundaries are really what we are talking about.

As my grandma used to say (decades before the internet was even a sparkle in her eye) “an ounce of prevention is worth a pound of cure”.  Plan ahead and avoid problems before they jump up (on your computer screen) and bite you in the you-know-where.

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

Being a trendy sort of guy, (and a family law lawyer to boot) I was intrigued in reading about the much publicized recent break up of movie star Gwyneth Paltrow and Coldplay frontman Chris Martin.

They are not calling it a ’separation‘ or a ’divorce‘ however , they are referring to their situation as a “conscious uncoupling”.  Is this just an attempt at rebranding or is it a revolutionary new way of ending a relationship?  Never having heard this phrase before, I was curious, so I decided to ’google‘ and see what came up.  Interesting, very interesting.

Experienced family law lawyers have a variety of skills to assist couples in resolving the legal issues arising from their separation, through the use of negotiations, mediation, arbitration, and litigation (as a last resort).  However lawyers are poorly equipped to assist clients in resolving the emotional, psychological and even spiritual stresses they inevitably deal with during the journey of separation.

This emotional, psychological, and spiritual journey, which I am now calling “conscious uncoupling” (being the trendy guy that I am) would appear to require a much deeper understanding of oneself and the part that each partner plays in the relationship and the reasons why it did not work out.  Each partner is required to undertake an introspective analysis of the role that they played in the dissolution of the relationship.  This seems like a pretty enlightened perspective, seeing most divorcing couples seem to spend a great deal of time and energy in the ’blame game’.

Each of us choose our partners for very different, and often unconscious reasons.  We may be attracted to a person with traits that we lack, or that are opposite to ours.  The regimented individual may be attracted to a spontaneous person who acts capriciously.  Eventually this may wear thin and become a source of conflict during the relationship.  By looking within ourselves we may find more meaningful “truths” that may be uncomfortable for some of us.  Sort of like looking in a mirror that points out the blemishes that we would rather not see.

Apparently the therapist who coined the term “conscious uncoupling” is U.S. therapist Katherine Woodward Thomas who has developed a 5 week program to assist couples who wish to take this more enlightened approach to ending the psychological, emotional and spiritual aspects of their relationship.

In my law practice, I often recommend to clients that they seek counselling assistance to support them on the emotional journey they experience in their separation.  The range of emotions can go from denial, to anger,  rage, acceptance and every emotion in between.  This new and seemingly helpful approach of “conscious uncoupling” may become another facet of support I suggest to clients.

David Harris-Lowe, Associate, Family Law

One of the first steps to determine the amount of child support to be paid is to determine the income of the parties.  The starting point for determining your income is line 150 of your tax return, but this is often not the end.  If you are a commissioned employee, a professional or union member, self-employed or working for a family business then there are many adjustments required to determine your income to calculate child support.  Once your incomes are determined then the amount of support payable is calculated by reference to the child support table.

If you are earn an income more than $150,000.00 annually then your lawyer should consider section 4 of the Child Support Guidelines, which says that if the table amount of support is inappropriate, then the table amount payable can be adjusted to an appropriate amount with regard to you or your ex-spouses income over $150,000.00 each year taking the children’s circumstances into account.

This issue was considered recently in McNeil v. McNeil, by the Court of Appeal in New Brunswick.  The payor in that case had exercised stock options in 2005 and never told the support recipient.  His line 150 income was well over $150,000.00 as a result.  The recipient found out about this in 2011 and sought to have additional child support payable on account of this higher income.  After a motion the Court of Appeal decided not to include the payor’s stock options in his income because it was non-recurring and didn’t result in disposable income to the payor.  In other words, the amount of support payable because of his exercise of stock options would have amounted to transferring wealth to the children’s mother and would not have focused on the needs of the children.

There are several lessons to be learned from this case:

a)    Disclose your income situation accurately and annually.  Hiding what your income is often leads to problems and court.

b)    Some people think that retroactive child support can only be considered for the last three years.  This case considered child support from six years before. 

c)    If you are or become self-employed or receive other ‘unusual’ income, you should speak with your lawyer whether this will affect your child support obligations.

Had the payor in this case disclosed his income and received good legal advice, one wonders whether the matter would have even gone to a motion, let alone the Court of Appeal.

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

We are often asked by clients if they can “use” their legal costs they incur to establish their support obligations and rights as a deduction from income for tax purposes?   The short answer is that the portion of the legal fees incurred by the support recipient can be deducted from their taxable income.  However, the payer of the support cannot deduct the legal expenses they incur in establishing their support obligations.

A judgment from the Tax Court of Canada in October 2011 clarified some of the additional circumstances and considerations that The Canada Revenue Agency should take into account in determining whether a taxpayer can claim certain legal expenses against their otherwise taxable income.

The case is Mercier v the Queen 2011 T.C.C. 427. 

The Court seemed to focus on the word  “establish” a child support amount in accordance with the child support guidelines. The court stated “that it is trite law that the legal costs incurred to obtain child support for the benefit of a child are deductible in computing taxable income”  and cited The Canada Revenue Agency Interpretation Bulletin IT-99R5 at paragraph 17 as support for this position.

Previous cases have stood for the principle that it is only the support recipient who is entitled to deduct his or her legal expenses.

However, in this case, both spouses claimed that they had custody of the children for part of the time and thus both claimed that they were entitled to child support from the other parent for a part of the time during the relevant tax years.  The Court recognized that this was somewhat of a unique case and that both parents had a claim to entitlement to custody and to child support and would have given both parties some deduction for their legal expenses in attempting to establish the child support amounts.

What was also interesting in this case, was that the Court carefully reviewed the actual court documentation in the custody and support legal proceeding and compared the documents prepared with the invoices for legal services submitted by the lawyer for the taxpayer to ensure that services provided actually dealt with establishing the support entitlement rather than other legal issues such as a divorce, non-removal of the children from the jurisdiction, etc..

Our firm is often asked to provide a letter to be submitted by the taxpayer with their tax return to claim a deduction.  Be sure to ask your lawyer to provide a similar letter if you are in a position to claim a portion of your legal fees as a deduction for tax purposes.  Better still,  ask your lawyer, when preparing their invoices to you, to use the words “establishing” or “collecting” child or spousal support in their notations on the accounts.

The Canada Revenue Agency will tell you that you cannot deduct the legal fees charged for getting a divorce or for establishing a parenting arrangement from your taxable income.

For more information please consult your accountant, tax return preparer or the Canada Revenue Agency website at www.cra-arc.gc.ca

Barrie Hayes, Partner, Family Law

Statistics Canada has recently released an analytical paper addressing parenting and child support after separation or divorce. Highlights of the paper are as follows:

In 2011, approximately 5,000,000 Canadians had separated or divorced within the last 20 years. Of these, about one quarter currently had at least one child aged 18 years or younger, together.

Most often, the mother’s home was the child’s primary residence after separation or divorce, reported by 70% of separated or divorced parents. Another 15% indicated that the child mainly lived with the father while 9% reported equal living time between the two parents’ homes.

The majority of parents whose child lived primarily with their ex-partner spent either no time or less than three months in the last year with their child: 18% had no contact with their child and 44% spent some time, but less than three months.

Just over one third of parents indicated that majority decisions on the health, religion and education of their child were made either jointly or alternatively with their ex-partner.

Parents often had written arrangements on child residency and time-sharing, at 55% and 45% respectively. In 2011, parents were equally as likely to work with lawyers to draft a written agreement, as they were to go to court for a judge ordered arrangement.

Over half of parents reported they complied with the arrangements on time-sharing, while another one quarter, followed the arrangements for time-sharing most of the time. The top reason cited for noncompliance with time-sharing arrangements was the ex-partner canceling his or her own time with the child.

About three quarters of separated or divorced parents were satisfied with the time spent with their child.

In 2011, 21% of separated or divorced parents were paying some form of financial support for their children, while 26% were receiving child support.

Over half (55%) of all written arrangements for child support where registered with a support enforcement program. Registration in the support enforcement program increased with the level of legal involvement with 76% of judge ordered arrangements being registered with the program.

Kim Kieller, partner Family Law

By now most of the public is aware that there are several ways to settle any dispute – whether it be a family breakdown, a corporate shareholder dispute or an employment contract disagreement. Historically, the parties would prepare their materials and let a third party – a judge – decide their issues and dictate a solution. Several different styles of litigation have developed. In the extreme, there is the “deny, deny, deny”, litigation method. This is practiced by the lawyer/client that will simply not agree to anything.  Sometimes this can actually be effective. However there is a serious cost to this type of a strategy,  both financial and emotional. The second form of litigation model has become much more acceptable in the last 20 years; being a negotiation model. For example, when I started practicing law, the idea of a settlement conference was a novel approach!  Now a settlement focus is a part of all litigation .

However, litigation is not the end-all and be-all for most parties. By litigating a matter, a third party who does not know you, your dispute, your personal needs, your ambitions and the background to the litigation decides all issues before him or her. It may take years to get the matter settled. it can be costly. It can be emotionally and psychologically draining. The efforts and stress from the litigation can also, in most cases, deter from productivity and positive returns as the process is  a divergence of  you and your firm’s efforts from moving forward to living in the present.

So, what options does one have?

Negotiation is always an option. However, when negotiation – where both parties and their counsel have their own agendas, fails, another option is mediation or mediation and arbitration. For the sake of this blog post, the do’s and don’ts of mediation are the focus. A subsequent blog will deal with the issue of arbitration.

Mediation is a process where a nonbiased independent individual facilitates the parties in order to come to an agreement as between themselves. The mediator does not offer solutions. The mediator does not make decisions. As a neutral facilitator, the mediator is trained to assist the parties in coming to a reasonable and fair agreement. The mediator in a complex case may bring in certain individuals including accountants, business valuators, psychologists, etc. The mediation is not a “quick and dirty” approach. The process can take a while. However, it is a process that can be utilized in an effective and efficient manner.

There are two types of mediation – open and closed – and depending on the circumstances the parties choose which format they wish to utilize. In a closed mediation session, everything is privileged. Nothing that is said, written or suggested in the mediation, unless it is finally determined in an independent contract, is binding on the parties. In a an open mediation session there can be a report completed in regard to all that is occurred and the information discussions are not privileged. The mediator may make recommendations. The terms of what can be released by the mediator is determined by the contract between the parties and the mediator, usually, with independent legal advice.

In short, it is important, if you choose mediation, to follow the following do’s and don’ts.

DO always obtain a well recognized, qualified and certified mediator. Anyone can hang up their shingle and indicate they are a “ mediator”. A qualified and certified mediator is known by their initials or by their certification from one of the three mediation services in Ontario ADRIO, OAFM, FMC.  It is imperative that the mediator you choose have at least one designation. To obtain the designation, the mediator must go through a rigorous internship. For example for the OAFM accreditation, one has to take 2 40 hour courses, a domestic violence course and have at least 100 hours of interning experience before they can even apply to the accreditation committee to be certified . In choosing a certified or accredited mediator, you can be confident that person will follow all of the rules and principles of mediation in order to provide an effective mediation – rather than a glorified pretrial or worse.

DO be prepared for the mediation. If it is of a financial nature, bring the financial documents with you. Attempt to have a synopsis of the financial issues determined ahead of time and exchange them with the other side. If you are not sure as to what is needed, ask for a premediation meeting where the mediator can discuss the issues with you, set an agenda and assist in determining what information you will require.

DO discuss, in advance, the attendance of counsel. In complex cases, the use of counsel may assist in resolving the outstanding issues; by way of drafting minutes of settlement, providing an analysis as to whether or not the agreement you are about to reach is reasonable in the circumstances. One factor that I note with clients is that they are prepared to settle for the here and now but not take into account the consequences of a long-term agreement. Your counsel can assist you to ensure that you are not settling for the short term but with unknown long-term consequences.

DO talk. The mediator is not going to talk. This is your mediation. You set the agenda. You discuss the issues. The mediator is responsible to  keep you on track and use various techniques to bring you back to the issues and assist the parties in resolving  outstanding matters.

DON’T expect the mediator to settle your issues for you. The mediator is not going to do so. The mediation is your mediation. The mediator will simply assist you in coming to a resolution.

DON’T expect the mediator to give you legal advice. The mediator may educate you but will not provide advice regarding the particular circumstances.

DON’T expect that the mediation report, once received , to be a final and binding agreement. In most cases, and the mediator can assist you in understanding if yours is one of these cases, the mediator may prepare a report which will be then taken to both lawyer; whether it’s a family lawyer, civil lawyer or otherwise, to come to a final resolution and a contract or agreement completed by counsel with independent legal advice.

DON’T expect the mediation to be completed quickly and in one session. Both parties have their point of view and no matter how much you feel that your position is correct, the other side will have their position as well. While some mediations may be completed in one session, in my experience this is the exception to the rule.

Mediation is a fair reasonable and considered way to manage disputes. It is something every person in a legal dispute ought to consider in order to save time expense and the emotional drain of a lawsuit.