Thomas Dart, Partner, Family Law

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Are there any similarities between the Olympics and the family law court system? Well…..if you are caught up in a family law dispute with your life long partner, you may think so. What are the differences? 

There is competition – many times, particularly if you are in court, the adversarial system drives you to seek out a ‘win’. Much like the Olympic judges who set the marks for the figure skaters, the Family Court Judges have a lot of ‘discretion’, it seems, to make life changing decisions for you and sometimes you just don’t know how or why the decision came out the way it did. You did your best, your best presentation ever, but somehow, you lost – not even a medal !!…..if you are caught up in a family law dispute with your life long partner, you may think so. What are the differences?

The cost – well not 52 billion dollars, but in your case, it may as well have been, as whatever it cost, it was not at all affordable for you ! 

The air of reality and unreality – the courtroom somehow seems so unreal, sort of like the Sochi Castle, so impressive. Everyone has high expectations when you first see it and yet, the experience in the court room, like the interior of the Castle, somehow leaves you feeling empty. What is justice? And Where is it? What just happened in there? A judge’s decision in a family law case is only the beginning, not the end, of the competition it seems.

There are Rules – no doping, no cheating, everyone in a particular event has to follow the same rules. Well there’s lots of rules for family law litigants – some of them seem a bit repetitive and hard to understand and follow. But if you don’t follow the rules, you have no hope of a resolution of the differences between you. You can be ‘thrown out of court’ if you don’t follow the Rules just like you can be disqualified from an event, for a false start, even though you are just doing your best.

The Olympics are exciting, entertaining, and the Champions are highly regarded. There is a “feel good” atmosphere, if you get a medal. For the rest, disappointment, and perhaps despair.

The big difference now though is that the goals are now changing. The Olympics produce champions – in a civilized and famous way. In Family Law, there can be no champions and you sure don’t want the publicity. You also don’t really want to be an ‘adversary’ of your life long partner – you just want the hurt to go away and be able to move on in some constructive manner, try to recover from the damage of the failed relationship.

So we hope that the times might in fact be ‘a changin’ to quote Bob Dylan for people who are going through the tragedy of a separation – there is a movement afoot in Ontario to divert people from the court system, away  from the competitive environment  – move them to consent dispute resolution services  like mediation or collaborative law; help make the experience more understandable, provide more information not only about the law but about the way in which disputes can be resolved outside of the court system – most importantly to change the culture – to put it into the words of the National Action Committee on Access to Justice in Family Law: “The main theme of this report is the need for culture change and, as much as possible, a further shift away from the adversarial process. Inevitably, some disputes will wind up in front of a judge in a courtroom for adjudication at a hearing or trial. Our object is to reduce their numbers, through providing a wide range of dispute resolution methods, before any family member darkens a courthouse door and even afterwards once they have to go through that door. Inside the courthouse, a unified family court can maintain a range of non-adversarial methods, thanks to the commitment of specialized judges and court staff. ….. At the unified family court intake stage is where the necessary triage and referrals take place. And, for those who enter the court process, at the “front end”, there is lots of room for non-adversarial procedures and work by non-judicial professionals. Family court judges should be reserved for those disputes that require a judge.”

I know that’s a lot of words, but if it can be made to come to pass, we will see a lot fewer damaged families coming out of a separation. Let’s hope that those working hard to make this change will see it come to pass in their lifetimes !!

David Harris-Lowe, Associate, Family Law.

When you separate one of the things you should add to your bucket list is when to get a new Will.  The real question is when and it may be sooner than you think depending the following and other considerations:

a)    Are you married or were you living in a common law relationship?

b)    Are you able to disentangle joint assets and debts before a separation agreement is signed or a divorce order is made?

c)    Do you want or need to disentangle your assets and debts immediately?

d)    Are you healthy?

e)    Do you already have a will and are you satisfied with who your trustee is and who the beneficiaries are? 

Common law spouses who separate do not have automatic entitlements to the other’s estate, but married spouses do, even if they’ve separated.  This is important because if you are separated, but not divorced, then your existing will is still valid and your spouse may be entitled to receive your property pursuant to your will and act as your trustee or your attorney.  Whether married or common law, your spouse may still receive benefits as a beneficiary to RRSPs, life insurance and pension entitlements. 

If you do not have a will drafted, then your married spouse still qualifies as a spouse under the Succession Law Reform Act and will likely receive your entire estate (if there are no children) and will likely receive a preferential share of $200,000.00 (if you have children) and the balance of the value of your estate will be shared with your children.  Once you get a divorce, only the parts of the parts of a will made prior to the divorce that give powers or benefits to your former spouse are revoked. 

It is important to get a proper separation agreement and follow through, such as getting a new will, powers of attorney and possibly changing beneficiary designations.

However, you should talk to your lawyer about making changes for beneficiaries and signing a new will even before you complete a separation agreement.

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

As more and more “baby boomers” approach their retirement years and more spouses have separated or divorced, when compared with earlier generations, a question that may be asked with greater frequency could be:  “If I retire, will my spousal support obligation to my former spouse terminate or at least decrease?”  Of course, the same question from the other end could be asked by the support recipient:  “If my former spouse retires while having a spousal support obligation to me, will the amount I receive be reduced or eliminated?”

The answer of course is:  “It depends”.

A request to change or terminate a support order for divorced spouses is to be determined under section 17 of the Divorce Act which states:

Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order…and in making the variation order, the court shall take that change into consideration.

So, you might think that if a payor retires and their income is reduced, then their support obligation will decrease (or be eliminated).  Not so fast!  The caselaw that has evolved over the years interpreting this section of the legislation has added a few wrinkles.

The courts have said that if the change in circumstances (retirement and reduction in income) was known to the parties at the time of the making of the original order, then this change cannot be relied upon to justify a reduction in the support.

Also, another consideration is whether the retirement of the payor was voluntary or mandatory.  In several cases the payor has decided to retire at 55, 56 or 57 years of age, and it was not a mandatory retirement.  The  payor sometimes argues that they had always planned on retiring at this age, even when still married, or they argue that the stress of their job is such that their health requires them to retire.  In the absence of clear and compelling medical evidence that they are not capable of performing their job requirements, this argument will not likely succeed.

Also coming in to play in some cases are considerations of how long the marriage was, and how long since the original order was made the request to change the support is brought.  For example, if spouses  had been together 26 years and the existing support order has been in place for 3 years, and the spouse requesting the change is 58 years old because he/she has decided to “wind down”, then there is very little chance that the change in support will be granted by the court if it is a voluntary retirement situation.

The answer to this potential problem is to specify in the agreement that establishes the original support obligation, those circumstances, such as retirement, that would constitute a change in circumstances that would trigger a change in the amount of the support to be paid.

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

Increasingly over the past 10-15 years the courts have been inundated with family law cases.  This has caused a considerable backlog of court cases, generating needless delay and expense for separating couples attempting to resolve their family law issues (child custody, child support, spousal support, property division, ownership & occupation of the matrimonial home, etc.).

This increased stress on the court system and the increasing cost of legal services for separating spouses has motivated those involved in the system to look for more cost effective alternatives.  These alternatives have included the provision of family law legal information through various government websites, self-help group websites, programs put on by the Ministry of the Attorney General at courthouses through Ontario [called Mandatory Information Programs] and community agencies and organizations establishing educational programming for parents and the children going through the separation process.

One of the most popular alternatives to judicial dispute resolution that has attracted a lot of attention are the mediation initiatives that have sprung up around the province. However, just as with other consumer services there is an increasing need for the regulation of those holding themselves out as mediators or arbitrators.

There is little formal control over the quality or the credentials of those offering mediation services.  As a family law lawyer it has been increasingly common to hear horror stories from clients complaining about the lack of clarity of resolutions achieved in mediation or that various topics or issues that should have been canvassed in mediation, were not. I have even seen separation agreements written by mediators who have performed the mediation in which they “assisted” the parties in achieving a resolution. Sometimes these separation agreements [or the supporting documentation with them] makes no mention of whether the parties have had an opportunity to receive independent legal advice throughout the process or before they have signed the separation agreement.

In the rush to save money, separating spouses often end up causing themselves further grief, stress, and expense when the need arises to interpret a clause of a poorly drafted agreement or to deal with an issue that was not contemplated in the agreement drafted by the mediator.

Family mediation has reached the point of general acceptance by the population and thus requires regulation – whether that be self-regulation or governmental regulation is the pressing issue for these service providers and for those receiving mediation services.

At the present time mediators providing services in Ontario within the family court system must have accreditation or certification. At present Family Mediation Canada, the Ontario Association of Family Mediation and the ADR Institute of Ontario Inc. have criteria by which they assess members who seek to provide family mediation services. There are requirements for specialized training and a minimum amount of relevant work experience. However, for those providing mediation services outside of the court system there are no similar requirements before hanging up a shingle as a mediator. While many family law mediators are lawyers who therefore have professional qualifications through their law society there are others, such as social workers, clergy, etc. who offer services as family law mediators who may or may not have the skill sets, education and training to provide quality services to a relatively vulnerable population going through an emotional stressful journey.

The Family Law Lawyers at Barriston Law have been offering mediation and arbitration services on an informal basis for several years.  We are now formally offering Mediation and Arbitration services through ‘Barriston Resolution Services’.  Tom Dart, Kim Kieller, Doug Manning and Jodi Armstrong have, among them, over 70 years of combined experience as family law lawyers and over 25 years of experience as Mediators and Arbitrators sanctioned by the Ontario Association of Family Mediation and the Arbitration Institute of Ontario.  We bring a wealth of experience and creative problem-solving strategies to clients who wish to retain our services to act as Mediators or Arbitrators in their dispute or to represent them as their lawyer within the context of Mediation and Arbitration processes.

For more details of our services please refer to our website:  www.barristonresolutions.com

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

In July I blogged on the topic of how you count time with your children in order to determine if there is a point at which the Table amount of child support may no longer apply because you have the children over 40% of the time. 

Well, how do you deal with child support obligations where there is more than one child and the children have different parenting schedules?

For example, say there are 4 children in the family and one child lives most of the time with Father and the other 3 children are shared between Mother and Father on a pretty equal basis.  This is a hybrid custody arrangement where some of the children are shared and one child lives solely with one parent.

In the B.C. case of Johal v Johal [2013] B.C.J. No.1921, the court decided the support arrangements in just this situation.  The parties agreed on their incomes:  the Father’s income was $104,500 and the Mother’s income was $50,000.

The Father’s position was that this required a two stage analysis. Firstly, figure out what the offsetting support obligations would be for the 3 children.  On Father’s income he would pay the Mother $1,997 and on the Mother’s income she would pay the Father $998 for a net payment of $999 per month for the 3 children.  The Father then went on to calculate that the Mother would owe the Father $458 for the child solely in the Father’s care for a net payment from Father to the Mother of $541.

The Mother’s approach was different.  The Mother calculated that the Father would pay her for the 3 children, the same $1,997 while the Mother would pay the Father on the basis of 4 children, being $1,194 for a net payment to the mother of $803.

In this case the Court preferred the Mother’s analysis, stating that it provided the greater “economies of scale” and more accurately reflected the reality of the parties and the children.

The Court also referred to the sections of the Child Support Guidelines which deal with split custody [section 8] and shared custody [section 9].

The reasons in this decision reflected that the children should not be treated in total isolation from each other as would happen using the Father’s 2 stage approach.  There may be savings for the parent who has all 4 children in his care that he would not have if he had the 4 children individually.

However, the analysis did not end with the Court simply preferring the Mother’s approach. The court went on to consider section 9(b) & (c) of the Child Support Guidelines to determine whether there were any increased costs of the shared custody arrangements and the conditions and means of each spouse.

The Court commented that it did not have good evidence on these criteria but lowered the support to be paid by the Father from the $803 required by the Mother’s approach to $622.

If you find yourself in a similar situation, you now know the approach the Court is most likely to use but don’t stop at the simple “off-set” calculation, go on to consider whether there are any other factors that would modify the amount of support.

Barrie Hayes, Partner, Family Law.

Let’s face it, short of dying, a family separation can be one of life’s most emotionally challenging experiences. Fear, anger, and frustration are common reactions in difficult separations. To get them through this difficult period clients look to their family lawyer. as their champion and trusted advisor.

I’ve sometimes had the experience of a client expecting that I will represent them not as a champion but as more of a gunslinger. The client, in those circumstances, seems to want me to transfer the pain and upset the client is experiencing into the Family Court arena.

This attitude of the client is not only counter-productive to an orderly, efficient resolution of the outstanding legal issues, it also places the lawyer in potential conflict with the Law Society of Upper Canada’s code of professional conduct.

The lawyers’ Code of Professional Conduct imposes a professional obligation on lawyers to treat lawyers and clients with courtesy and civility. Lawyer’s can be subject to professional discipline if a lawyer fails to maintain a civil and courteous relationship with opposing counsel or self represented parties.

I often tell clients that when they are in the throes of a difficult separation, that the last thing they need is to have the parties respective counsel going at war with each other. Those circumstances can only result in delays and an increase in the legal costs for the parties.

As a lawyer, I have an obligation to be my client’s advocate. There is, however, a dangerous line crossed when counsel becomes too emotionally invested in the clients legal difficulties. A lawyer owes an obligation to a client to provide the client with objective, dispassionate legal advice without undue consideration for the client’s emotional outlook.

There is an old story of a client who, after retaining the lawyer, was told by that lawyer that the first meeting would be the occasion that the client would find the lawyer the most likable. There is a necessary truth in that story.

Thomas Dart

Partner, Family Law

Not too many people are aware that Judges who sit in family court are not necessarily specialized in the area of family law. Under the current system, due to lack of judicial resources, Judges are appointed to the Bench from all different legal backgrounds. Some practised criminal law, some corporate commercial, some wills and estates, some were general practitioners, some were civil litigators and some were family lawyers prior to their appointments.  No lawyer and indeed no Judge can be a specialist in all aspects of law in this day and age. So often when you appear in family court, you may not have a Judge whose specialty is family law. Judges are very dedicated to public service and they will learn as fast as they can, but the reality is that some simply don’t have the training or the background to fully appreciate the many nuances that are involved in a family court matter. 

In a recent blog we did report on the initiative by Supreme Court of Canada Justice, the Honorable Beverly McLachlin. Under her influence,  Justice Thomas Cromwell has prepared a report on access to family justice. A full copy of the report of his Action Committee on Access  to Justice in Civil and Family Matters can be found at http://www.cfcj-fcjc.org/sites/default/files/docs/Report%20of%20the%20Family%20Law%20WG%20Meaningful%20Change%20April%202013.pdf

One of his most important recommendations is the establishment throughout each Province of a specialized family court with specialized family court judges.

His report is not being ignored in Ontario.  A number of professional organizations from all areas connected with family law problems have begun meeting to see what can be done about implementing the many excellent recommendations contained in this welcome report. 

We shall keep you posted as this important report gains recognition. 

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

Back in September 2011 my colleague, Jodi Armstrong, wrote a blog on how to calculate child support when parents share the care of the children on a more or less equal basis.

Over the past 18 or so years, since the Child Support Guidelines have come into play, many separating parents have struggled with the ramifications of their child support obligations when the child or children live more than 40% of the time with each parent. The Child Support Guidelines, section 9 essentially allows for a determination of the child support resulting in an amount other than the Table amount of child support, IF the children are in the care of each parent more than 40% of the time.  This section does not require an amount that is different than the Table amount but allows a court to take into consideration such factors as the increased costs of a shared custody arrangement and the needs and means and other circumstances of each parent in determining an appropriate amount of child support.

Before a court can get to dealing with the amount of support, the children must be in the care of of each parent “not less than 40 per cent of the time over the course of a year”.  So much time has been spent by parents attempting to determine the amount of time the children are with each of them.  Is the determination based on the number of overnights per year? the hours per year? the minutes per year? or is there some other calculation that is necessary?

Much of the caselaw in this area has been relatively inconsistent – some judges have counted the number of overnights the children are with each parent over the year; others have counted the hours.  The Court of Appeal in Froom v Froom indicated that there is no universally accepted method or formula for calculating the 40% threshold.  However, in a well reasoned recent decision in L.(L.) v C.(M.) 2013 CarswellOnt 3560, Justice Czutrin carefully reviewed the previous caselaw and came to the conclusion that there is something of a theme developing to the effect that it is the number of hours that the child is in the care of control of the parent; not the number of hours that the child is physically present with the parent that gets counted.  Thus it is the parent who is responsible for the child at the relevant time that gets the credit for the hours.

Justice Czutrin relies on an academic article and concludes that the time the child is with a parent at swimming lessons, at day care, at school or with a nanny is time to be credited to that parent so long as it is that parent who is responsible for the child during that relevant period of time.

One important point to be taken from this decision is that one or the other of the parent is going to be responsible for the child at all times.  We are not going to take out of the 24 hour day the hours the child is at school and say that neither parent gets credit for this time; one or the other of the parents is going to get credit for the school hours.  So if the child is to be with their father alternate weekends from Friday after school until Monday return to school and each Monday from after school until 8:00 p.m. then it is probably the father who will get credit for the school hours on Mondays.

The issue of counting of hours comes up most frequently in high-conflict separations.  It is therefore more important in these types of cases that the parenting schedule be set out in considerable detail in the hopes of avoiding a costly debate regarding how much time the child is in the actual care and control of each parent.

Catherine Hyde, Paralegalholding jpg

I first got to know my best friend when we were 12.  Many a night was spent together telling our deepest secrets.  We were there for each other in times of trouble and in times of celebration. To this day despite living at opposite ends of the country, we rely on each other for support.  No one quite knows us as well as we know each other or remembers all the crazy things we did. 

Your relationship with your spouse should also grow to be such a relationship filled with trust, knowing you can rely on each other. It is a slow process to build up that trust.  Trust is essential to an open, honest and healthy relationship. Even before you decide to get married or live together there must be an element of trust between you, something to base your relationship on and grow with in the future.  You should both know the important facts of your past and what your dreams are for the future. 

To build trust, think back to those days when you were with your best bud and think about how you treated each other.  No doubt you were friendly, kind, and thoughtful with the other person.  You planned adventures together and talked about your goals, dreams. You did things with them even if it wasn’t something you necessarily wanted to do but because you were a good friend. Too often in a relationship we think that now that we are a couple we don’t have to be on our best behaviour.  You still need to treat your spouse as you would like to be treated and as you treat others.  Why save the best for other people?

There are several skills which will assist in developing trust.  These include:

  • Develop skills to be a good listener.  Don’t interrupt your spouse.  Both parties must feel free to express their opinions and to be heard
  • Do not leave issues unresolved – deal with them when they happen or set aside a time when you will both be fresh to sit down and discuss the issue – otherwise the issue will continue to fester and trust will be lost
  • Establish a safe emotional space – the other party must know that they can say and do what they need to without fear of ridicule or retribution
  • Develop good problem solving skills – learn how to determine what the problem is and how both of you together can resolve it
  • Learn to fight fair – all good marriages still have fights – you are not going to agree about everything all the time – you just have to learn how to express yourself in a way that is not degrading to the other person and does not attack the other person.  Stay with the issue and don’t dredge up something that happened 2 years ago

Once broken, the trust disappears and you must start from the beginning. You might think you will never be able to trust again.  The quick answer is to terminate the relationship and find a family law lawyer.  There are, however, counsellors available to assist couples in learning how to deal with their problems and learn to re-establish trust in the relationship.  It will take time but it is worth considering before you throw away everything you have built up over time.  As Garth Brookes said in his song, “The Dance” – I could have missed the pain, but I’d have had to miss the dance”.  Remember all the good times, work through the pain and dance again.  

Barrie Hayes, Partner, Family Law

There is a marked difference in the legal approach to quantifying support claims when a support payor is living as opposed to after a support payor has died.

In situations where the support payor is living the Divorce Act determines child and spousal support for married support payors and the Family Law Act determines child and spousal support for common-law support payors.

Both legislations utilize the Child Support Guidelines and the Spousal Support Advisory Guidelines as the tools with which to quantify the amount of child and spousal support. Both of the said guidelines utilize the support payor’s gross annual income as the starting point in calculating the amount of child and spousal support.

In the circumstances where a support payor has died and has not made adequate provision for support for his dependents (surviving children and married or common-law spouse). The Succession Law Act provides the authority for a court to quantify the proper amount of support to be paid by the support payor’s estate.

In an estate based support claim the deceased’s income is not a direct consideration since the deceased is no longer working. The deceased’s pre-death income can, however ,be useful information in determining the dependant’s and deceased’s lifestyle prior to death. The total net value of the estate, the ongoing expenses for the dependent support claimant’s and the income of spouses claiming support are relevant factors in determining the quantum of support. Other factors that the court may consider are the age of the dependent, the length of time that the deceased and the dependent cohabited, the pre death role assumed by the dependent  in the family(i.e. the provision of housekeeping childcare or other domestic service)

In determining the amount of support the court is given wide discretion in quantifying the amount of support and structuring the support payment. The court can order that support be paid annually or otherwise for an indefinite or limited term, that support be paid in a lump sum or held in trust, that property be transferred to the support dependent, or in trust for the benefit of the dependent either absolutely or for a defined term. Support can be secured by a charge on the deceased’s property.

Suffice it to say that determining support claims against the estate of a support payor can result in widely varied support amounts and structured arrangements.