Catherine Hyde – Family Law Clerk

Summers in Barrie, Ontario have always been beautiful.  We live in a marvelous city with the beautiful Kempenfelt Bay at its centre.  I came from a siFamily on beachngle parent home and there was not much money.  Back in the 60’s every Sunday we walked from our home on Mulholland Drive which is near Barrie Central High School to East End Variety (which is still there) by St. Vincent Park for an ice cream cone and back again.  Most of the time there was a lot of moaning and groaning as I recall but here all these years later it is a fond memory.  We looked forward to the Rotary chicken barbecue on the August long weekend.  You got your quarter chicken dinner cooked by the Rotarians and sat along the shores of Kempenfelt and watched speed boat racing in the bay.  My sister and I had a bicycle built for two that we rode all over the City without a care in the world. (I was a lot skinnier in those days – guess if I took up some of these old habits that might happen again.  Food for thought! Oh did I say food?)   

I’m hoping our children have fond memories as well.  Fast forward to the 80’s and 90’s.  Our trips in the summer were not by plane or train but by automobile.  According to our oldest for some reason we stopped at every fish hatchery.  Another recalls all the local museums we traipsed through.  There were tons of books to read, crafts to make, stops for picnic lunches. There was the usual squabbling in the car so we played those car games where you count the cars that are red or different provinces or look for trucks or play I spy.  We were not only travelling to a location but we were making memories.  When not on vacation there was bicycle riding every Sunday, trips to the lakefront or in the fall, hiking in the conversation areas or going out for apples.  

What will the next 20 years bring? What kind of memories will our children be making with their children?  As we drove around the Barrie Waterfront on the July long weekend it was clear that people were still enjoying the bay and I expect they will do so for the next 20 or more. Many were out picnicking, swimming or just sitting and watching the boats go by.    Young and old – no matter.  All were enjoying the same things.

What memories do you want to be making? Whether you are a custodial parent or an access parent, or have shared parenting, enjoy what time you have with your children.  Try to put aside the grievances you may have with your spouse and try to be the one taking the high road in a difficult situation.  Your kids will remember the time they spent with you as being enjoyable and not a tug of war between parents.  Trying to control your spouse by saying no to changes in the schedule without true justification only hurts the child in the end and increases the friction between you and your spouse. Remember the first concern is the child not you or your spouse!

Have a fun summer and make the most of those memories!

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

A recent decision from Spain regarding medical malpractice turned out to have unanticipated family law consequences!  A gynecologist was ordered to financially assist a 24 year old patient with raising her son.

A Spanish court in Majorca made the decision after the woman sued because her doctor had said that he had completed her abortion, when, apparently, he hadn’t.  Not only had the doctor botched the abortion, but he also failed to detect that the woman was still pregnant in her follow up appointments.

In 2010 a young woman went to the doctor’s clinic to have an abortion when she was 7 weeks pregnant.  Two weeks later she returned for a scan, and the doctor assured her she was no longer pregnant.  Several months later, she returned to the clinic suspecting that she was still pregnant, and it turned out the allegedly aborted fetus had been growing in utero.  At this point the woman was 22 weeks pregnant and could not abort as it is against the law in Spain after 14 weeks.

The clinic offered to reimburse her the $500 the woman had paid for the procedure and referred her to a Madrid clinic that might perform a late-term abortion. But it was too late.  She had no choice but to give birth which she did about 4 months later.

The court ordered the gynecologist and his clinic to pay the woman $189,000 for emotional suffering.  The doctor was also ordered to pay $1,300 per month in child support until the child is 26 years of age.

There is no word on whether the woman is going after the father of the child for child support as well.

The breakdown of a relationship is always a stressful experience but the emotional impact is heightened when there are children involved and spouses are faced with making a decision about how they intend to parent their children going forward or, worse yet, they are faced with having a judge make that decision for them.  Once a parenting arrangement is at last in place (often many months and many dollars later) it may seem a bit disheartening to realize that your Final Order or your Final Agreement is not, in reality, actually final.

The reason a custody and access order is never actually final, however, makes perfect sense: custody and access orders are based on whatever is in the child’s best interests and we have no way of knowing, with any kind of certainty, what the future is going to bring.  A parent may get transferred out of the area, illness may impact a parent’s ability to provide a child’s care, or a child may reach an age/maturity that gives him or her a much greater say as to where they will live and with whom.  Decisions with respect to custody and access are to be based on the best interests of the child at the time of the decision and, clearly, what may be in a child’s best interests today may not be in that child’s best interests in the future.

You should not, however, get the impression that final custody and access orders are inconsequential or changed haphazardly.  It is not as simple as having a change of heart or just disagreeing with an order.  An application to vary a custody and access order requires the applicant to prove two things: first, that there has been a material change in circumstances; and second, that as a result of the change, the prior order no longer reflects the best interests of the child.   Absent evidence of a material change in circumstances, the prior order will be considered correct as of the time it was made.

We all need to make the best decisions we can for our children and, unless something changes significantly, commit to making that arrangement work as seamlessly as possible.  If something does change, however, the focus is once again on the best interests of the child and on how to ensure that that child’s wellbeing is best addressed in the changed circumstances. 

Catherine Hyde, Family Law Clerk

My uncle was residing in a nursing home and it was left to my husband and me to sell his home.  We sought input from three realtors as to the price and what needed to be done in order to sell the home.

Two of the agents came in and after viewing the property suggested a list price. They advised what they felt were certain comparables based on work they had done prior to our meeting.  The third agent walked around, took pictures and measurements and set a time for a follow-up meeting. At that meeting he provided a booklet containing all of the information with pictures of the house, comparables and his suggested list price.  All three agents came to the same conclusion as to the list price. So you might say if two could do that without going to the trouble of preparing the booklet are they more knowledgeable and a better choice.   I asked the third agent why he didn’t just give a price for the house as the others had done.  His response was that he could have, he knew the price on his first visit, but he wanted us to see that if he was prepared to put this much work into getting the listing, we would know that he would work hard once he had the listing to sell the house.  It worked as we retained him.  Frankly because so much of the work had been done in advance he was able to hit the ground running and the house sold in three days, partly due to market conditions, but also due to the preparation done in advance.

So what does this have to do with matrimonial law? On your initial interview with your lawyer when deciding whether to retain, ask yourself – did they do the work? Do they want my business? As much as it is about money and what you can afford, you also want to know that whoever you retain is going to do the work and hit the ground running so that your money is well spent. For example, do they have a website where you can research the various family law lawyers to determine who might be a good fit for you? Do they have a blog with articles dealing with various family law issues? Was your initial call to the firm handled well?  At your appointment did you feel that the lawyer was prepared for your meeting? Were you advised of additional resources available to you to assist you through the process such as the names of blogs, books you might read or counselors that could be of assistance to you or your children?

Did you feel rushed or that what you were saying mattered? Did your lawyer in effect take a “picture” of your situation and provide a roadmap of what you can expect

There is a misconception by some that you must have a “shark” as a lawyer in order to protect your interests and that is the only consideration when retaining a lawyer. This is not the case for most family law matters.  Certainly sometimes an adversarial approach is required but in the majority of cases a sense of reasonableness by all parties will lead to an overall resolution quicker and more cost effectively.  Ensure you are retaining a lawyer based on your needs and whether you feel they did the work upfront and will continue to “do the work” to get the best resolution for you.

This week, let me digress a bit from the family law field, although I think this topic is directly related to the issues we mediators face on a daily basis. If any of you have watched the Rick Mercer report on CBC television, you are undoubtedly a fan of his “weekly rant” in which he highlights the absurd aspects of the various programs of those in government. I certainly do not have his talent for comedy nor his linguistic skills but then this blog is not about comedy today.

For those mediators who daily deal with conflict resolution, it is a difficult task to bring parties to agreement given the emotional aspects of the family law conflict. This task is rendered all the more difficult when we take into account the culture of our current society which has basically allowed capitalism to run unchecked. No, I am not a Communist and, as a lawyer mediator, I certainly have every respect for capitalism – provided that it is tempered by appropriate regulation, which, by the way, it once was.  The subprime scandal in the US is a typical example of uncontrolled capitalism and, as can be seen, lack of control is extremely damaging to the economy which in turn is extremely damaging to the family unit, however that family is comprised. Maximizing corporate profit is now more important than keeping people working. People who lose their jobs as a result of this culture begin to lose their sense of self-esteem and self-worth. They become depressed and family relationships naturally begin to fail.

At the root of all this of course is greed.  There are those who seem to think that they should have the vast majority of the fruits of our society. These folks have always been around but for some reason we now seem to be willing to buy into this mentality. Why? And why am I talking about this now?

In my practice, more recently and more often than ever, I have come across a few microcosmic examples of this greed. I have seen perfectly profitable corporations retain outside managers and consultants whose sole purpose in life is to make work intolerable for any highly paid individuals. They are able to drive out good workers who earn high wages so that the company can replace those people with workers who earn half the amount. The company thereby substantially increases its already acceptable profit to greater heights so that its CEO and senior management can reap the rewards. The CEO of course has no long-term vision for the company because he or she is only in power for 3 to 5 years. They seem to think that they need to generate as much wealth for themselves (and the shareholders)  as they can in that short period of time and the best way to do that as to eliminate or significantly reduce wage costs as quickly as possible. It does not matter to them after they are gone from their post as CEO that the company can no longer function properly because its good workers have all retired or have been driven out of the company.

Our Canadian federal government, in its amendments to the employment insurance scheme, seems to completely endorse the corporate model outlined above. Workers are now told that if they do not accept lower paying jobs, they will not qualify for ongoing employment insurance payments. In other words, this government fully endorses the capitalistic approach of lowering wages so that corporate profits can be increased. Yet we know from other sources like the Toronto Star that the employment insurance premiums that are charged to workers and to employers reputedly generate more income for the government than it pays out in employment insurance payments to unemployed workers. In other words, there is enough money in the scheme to fund its obligations to unemployed workers. So the reason for this scheme can’t be that there is no money to fund the operation.  Therefore, the logical conclusion is that the Government philosophically supports driving Canadian workers’ wages down. The NDP party is hammering this home daily in the press. (No I am not an NDP supporter. In fact I am totally apolitical these days. )

How does this all affect family law?

Well the answer surely should be obvious. Our Canadian families are being placed under extreme stress through job loss or wage reduction or simply unwarranted pressure at work from bosses like the manager described above. This culture of greed is tearing families apart. When the spouses in such families separate, we often see both spouses unemployed for the first time in their lives. They often have children and are dividing up debt more than they are dividing up assets. The future looks bleak for them. More importantly to them the future is one of despair for their children. Their limited entitlement to employment insurance only increases this despair. Our finance minister tells them that “no job is a bad job”.  This brings to mind the famous statement purported to have been made by Marie Antoinette the French Empress who on the verge of the French Revolution said “Let them eat cake”, referring to the poor who were in the same kind of desperation then as our poor are now.  The fact that no job is a bad job is little solace to the family who is used to a middle-class income which has evaporated. They suddenly have to accept wages which require them to work two or three jobs, if they can find them, just to keep the payments on their homes. They hardly have time to devote to the needs of their children or their marital relationships.  And we wonder why the divorce rate is so high in our country.

Perhaps, (and it is just my opinion), we need a major cultural shift. We need a leadership contingent who believes that the culture of greed is wrong for our society and that there is a better way.  Perhaps we can look to models of government who value the sanctity of the individual more than the corporation. There are countries in the world that provide good models – Norway, Sweden quickly spring to mind but there are others. Why don’t we look to countries which promote values different than our currently misdirected sense that the maximization of corporate net profits is the only way to save ourselves?

 I fully acknowledge that not all relationships can succeed and that economic difficulties are not the sole source of family conflict. There are many other reasons for the failure of the family unit. But the culture of greed is pervasive and it affects both rich and poor families. This culture facilitates selfishness and in fact extols as a virtue the focus on self, “what’s in it for me”?  Marriage and family relationships are not about that – they are about love and often self-sacrifice – virtues which are not promoted in the current environment.  If our culture did shift and family relationships then lasted forever, I would be out of a job. But you know what? I would be happy. 

Thanks for letting me rant – Mr. Mercer please accept my apologies.

Although Ontario common law spouses have a statutory right to receive spousal support upon separation, there is no statutory recognition of common law spouses in claims for property. The Family Law Act, in dealing with equalization of net family property, limits spouses to legal married spouses only.

Courts in Ontario, however, have historically granted common law spouses entitlement to compensation, monetary or property, against another common law spouse on the basis of the equitable principles of unjust enrichment, quantum meruit and resulting trust.

Unjust enrichment relief will be granted when a  claiming common law spouse ( claiming spouse) can prove:

1)    that the claiming spouse has provided enrichment or benefit to the other spouse;

2)    that the claiming spouse suffered a corresponding economic deprivation;

3)    that there was an absence of juristic reason (ie: no reason in law or justice) for the common law spouse claimed against to retain the benefit conferred by the claiming  spouse.

If the claiming spouse can show that his or her benefit provided to the other spouse was connected, in fact, to a specific property, the unjust enrichment remedy award could be secured by the court granting a constructive trust in favour of the contributing spouse against title to the property in question. In circumstances where monetary remedy was appropriate a lump sum monetary re-imbursement was paid to the claiming spouse on the basis of the doctrine of quantum meruit.

The courts have historically also used the legal remedy of resulting trust in common law situations to grant an interest in a claiming spouse to the acquisition of property where the court was satisfied that it was the intention of both parties that, even though legal title of a property was registered in the name of one spouse, the legally titled spouse was, in actuality, holding title in the property in trust for the benefit of the claiming spouse.

The doctrine of unjust enrichment frequently arises out of the following fact situation:

Common law spouse A (the contributing spouse) moves in with common law spouse B (the unjustly enriched spouse) into spouse B’s home, which spouse B solely owns.

Over the course of several years, while the spouses are co-habiting in spouse B’s home, spouse A contributes monies to pay down the mortgage and provides labour and service (ie: provision of meals, housekeeping, assisting in renovations and/or improvements to the property, maintaining the property), which over time increased the value of the property by increasing the equity in same and the fair market value of the property.

Following separation of the spouses, the court would examine and quantify the amount of increase in value for spouse B’s home and determine whether, on the basis of the three unjust enrichment principles enumerated above, spouse A is entitled to receive either a monetary award for the labour or services provided or a percentage interest in the increase in the value of the home owned by spouse B.

The Supreme Court of Canada, in recent judgments of two cases has taken a fresh look at the concept of unjust enrichment. The court ruled that the resulting trust remedy has been all but eliminated as a remedy in a family law proceeding. The three principle elements of unjust enrichment were affirmed by the court, which held that in pursing the unjust enrichment the claiming spouse must show that the enrichment does not fall within an established juristic reason (ie: contract disposition of law). If the enrichment does not fall within the established categories, then the claiming spouse has established a prima face case of unjust enrichment arising from a disproportionate sharing of assets accumulated during the period of common law cohabitation.

The court labeled common law relationships wherein unjust enrichment entitlement arises as “joint family ventures”. The court held that the claiming spouse must show that there is a joint family venture and that there was a link between his or her contribution to the venture and the accumulation of wealth.

Some of the factors listed in establishing that a common law relationship was a joint family venture are as follows:

1)    the pooling of efforts;

2)    the decision to have and raise children together;

3)    the length of the relationship;

4)    the joint contribution to a common financial pool;

5)    the use of parties funds entirely for family purposes;

6)    the extent of economic integration of the family such as the sharing of expenses and amassing common savings.

7)    The priority of family (ie: contributing spouse leaving the workforce to raise children   or relocating to benefit the other spouses’ career.

Although the Supreme Court, by establishing the concept of the joint family venture, has more clearly identified a legal mechanism for establishing an unjust entitlement, the nature and extent of the relief (the amount of monetary damages or percentage interest in the other spouse’s property) has not been addressed and will still continue to be determined at the discretion of a trial court judge.

Given that the sheer number of spouses who separate has increased cumulatively over the years, then the number of people who re-partner must also be increasing.  This results in an increase in the number of people who should protect themselves, and their net worth in the event of a separation from their second (or third or fourth) spouse, whether that is a married spouse or a common-law spouse.  However , I am sometimes surprised by the number of people I meet, not only in my professional world but also in my social circles who will tell me that they are in a new relationship and that things are great.  When I casually ask them if they took any steps to safeguard their assets from having to be shared with their new spouse in the event of a separation, I am often greeted with a surprised look or a blank stare.

Once the initial surprise wears off, they sometimes will ask for more information.  In general terms I will tell them that in most jurisdictions, married spouses are entitled to share in the growth of the other spouse’s net worth during the marriage.  In Ontario, in general terms, if a husband is worth $200,000 upon remarriage and he is worth $300,000 at the time of separation and his wife was worth $100,000 at the time of the marriage and is worth $120,000 at the time of separation, then the husband would owe the wife an “equalization payment” of $40,000.  The husband could have been able to avoid this eventually through the use of a marriage contract in which both spouses would have agreed not to share in the net financial growth of the other spouse at the time of separation.

Even greater inequities could result in the circumstances where one spouse brings a house into the marriage and that is the same house at the date of separation. In Ontario, the owning spouse could lose the ability to deduct the net equity in the house at the date of marriage and have to share the entire equity in the house at the date of separation with the other spouse.  Again, this “unfair” result could have been avoided through the use of a marriage contract.

Couples that cohabit in a common-law relationship could face even more challenges in the event of a separation.  There are no clearly defined legislative provision governing how common-law couples are to divide their property if they separate.  Depending on how long the couple are together, there could be very complicated negotiations as to whether one spouse is entitled to an interest in the other spouse’s property.  This could arise if one spouse has contributed to the mortgage payments, payments made for improvements to the property, or “sweat equity” being contributed to the upkeep of the property.  This analysis can become very detailed and time consuming.  Common-law spouses can minimize the possibilities for disputes by entering into a cohabitation agreement.

If you are considering a new relationship please consider taking some steps to protect what you are bringing into the relationship, or , “love may NOT be sweeter, the second time around”

A Colleague of ours just came through a rough year of cancer treatment.  We are extremely grateful that this partner in our firm is healthy and back to work.  This colleague recently asked me to provide my comments to him for a presentation he is giving at our local Gilda’s Club regarding legal considerations when you are faced with a cancer diagnosis.  Below are things to be considered if you have been diagnosed with cancer and you now want to seek spousal or child support; if you have an obligation to pay support; or if you are a support recipient. 

Support Entitlement

  • If you have separated and have not dealt with issues pertaining to support and property division before your cancer diagnosis, get legal advice and start this ball rolling as soon as possible to preserve your rights and entitlements. 
  • If you have not pursued spousal support previously because you were working and able to support yourself, you may now be entitled to support.   
  • If you have a child in your care and you have not pursued support in the past, you should pursue support for that child, as that support may become very crucial if/when your income will be reduced while you are off work and undergoing treatment. 
  • Get legal advice from a Family Law Lawyer. 

Support Payors

  • If there is an Order or an Agreement for support then that Order or Agreement stands until varied. 
  • As the payor, find out how the diagnosis will affect your income stream (e.g. will you continue to be paid?  Will you be on Employment Insurance?  Get short-term or long-term disability payments?)  You need to consider and estimate what your income will be while you are off.  Your Human Resources contact at your workplace can help you to determine what your income will look like while you are off work.
  • Just because your income may be reduced due to your illness, does not necessarily mean that your support obligations will be suspended or reduced.  You cannot just decide unilaterally to stop paying and if you do, the recipient may seek to enforce the payment of support through the Family Responsibility Office. 
  • The Family Responsibility Office (FRO) will not suspend or change your support obligation and will enforce the recipient’s entitlements to support unless there is an Agreement or Court Order.  In some cases FRO may agree to refrain from enforcing your support Order or Agreement pending the outcome of a Court action. 
  • In regard to Child Support, you can determine your reduced obligation by referencing the Child Support Guidelines.  Determine what your monthly income will be while you are off work and look at the CSG Chart for your province to determine the corresponding child support obligation.  
  • In regard to spousal support, your illness may be considered a material change in circumstance which gives rise to a variation of your support obligation (it also may not be a material change if the change in your income is such that your income is not materially affected).
  • In any event, if you believe that you need to reduce or suspend child or spousal support payments due to illness, you should notify the recipient in writing, advise him or her of why you are requesting the reduction or suspension, and give him or her as much information as you have available in regard to how this diagnosis will impact you in respect to income.  The more open you are with this information the more likely the recipient will be amenable to agreeing to a suspension or reduction in support. 
  • If you believe you are able to properly calculate reduced child support, make the calculation, provide the recipient with your calculation, and request that the recipient enter into a written agreement to reduce the support based on the change in your circumstances.
  • If you are unable to pay at all as you are off work without an income or your income is drastically reduced, request that support be suspended and that the recipient agree to this suspension in writing.
  • If you are varying a Court Order you may need to file a motion to change on consent to ensure that the Court Order in place reflects any tempoarary agreement you may have around the reduction or suspension of support.
  • If the support recipient does not voluntarily agree to suspend or reduce the support payments, you should seek to obtain a Court Order in this regard.  Get legal advice. 
  • If you are paying support directly to a recipient and the support is to continue, you may wish to register your Order or Agreement (and any amended agreements) with the FRO.  FRO not only enforces Support Orders and Agreements, FRO acts as an accounting agent to keep payments flowing through electronic funds tranfers and they maintain the record of payments made and  received; taking this burden away for the supporrt payor and/or their family or friends helping them while they are undergoing treatment.
  • Check your Order or Agreement and see if there is a provision that deals with your incapacitation or death and see how support is dealt with.  You may need to advise your Power of Attorney for property regarding your support obligations and ensure that they have your Agreement or Court Order.
  • Check as to whether you have met the Life Insurance obligations under your Agreement or Court Order as they relate to the recipient(s) of support, ensure that you have fulfilled those requirements and that the support is secured or continues to flow to the recipient.
  • Get legal advice from a Family Law Lawyer. 

Support Recipients

  • If you are the recipient of child support, with children solely in your care with only access to the other parent and the children are remaining in your care while you are uindergoing treatment, there in should be no change in child support coming to you while you are off work.  A reduction in your income does not affect the amount of child support you receive as that amount is determined by the support payor’s income.
  • There may be a reduction in the amount of add-on or extra-ordinary expenses you are required to contribute to, if your income is reduced.
  • If you are in a shared parenting arrangement and support is coming to you, you may be entitled to more support if your income is reduced. 
  • If you are receiving child support and the children must be temporarily cared for by the support payor, you should agree in writing to the suspension of child support payments while they are in the payor’s care. 
  • If you are receiving spousal support or you waived an entitlement to spousal support in an Order or Agreement, your diagnosis may be a material change in circumstances which would trigger a review and variation of spousal support entitlements.
  • If you are receiving support directly from a payor, I recommend that you register your Support Order or Agreement for enforcement with the Family Responsibility Office as they keep accounting records for you as to payment s received.  Registration with FRO ensures that payments continue to flow to you from the payor without you having to cash cheques or have someone pick-up cheques from the payor on your behalf.
  • If you are receiving support check your Order or Agreement to determine what happens with that support in the event of your death. 

Before you decide how you need to proceed…get legal advice!  At the very least, attend a single consultation with a Family Law Lawyer to ensure you understand your rights and obligations.  Most Court Houses in Ontario have a Family Law Information Centre (FLIC) with staff available and with access to written information about your rights and obligations and the Family Court process.  FLIC may also have free advice lawyers available for a consultation for those who meet a means test.  If you are pursuing support, legal assistance may be available through your local Legal Aid office if you qualify.  This may be something you will want to tackle before treatment starts, as you may not be able to deal with these issues effectively once you are undergoing treatment. 

For more information check out the following links:

http://www.barristonlaw.com/

http://www.attorneygeneral.jus.gov.on.ca/english/family/

http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/index.aspx

http://www.legalaid.on.ca/en/

For the past twenty six years I have been practicing law.  It definitely does not feel as though it has been that long, and I have enjoyed every minute of it.

To me, it has always been about helping people.  However as I get set in my ways I notice how habits develop without me even knowing  it.  I was not aware of some of these habits until I was on the other side of the desk, a client with my own lawyer!

What I have taken from this situation is helpful to both clients and counsel alike.

As counsel I have always tried to put myself “in my client’s shoes”.

What I mean by this is that I approach each client as if I were on the other side of the desk. What do I expect from my counsel?  Of course, I use the word and noun “counsel” on purpose.  The first thing I will expect is counsel from my lawyer.  This means counsel within the retainer, not counselling in the psychological sense.  Your lawyer is not a qualified therapist and, even if he or she is, their time is are a very expensive therapeutic option.  As a result, keep your communication in a factual manner. 

The second thing is that I always try to provide personal replies and answers to legal issues and questions, rather than delegating this to a clerk or a junior lawyer.  Answers ought to be dealt with as soon as possible.  I would expect as a client to receive emergency answers immediately – and if the issue is an emergency to me but not, in an objective manner, to my lawyer, for someone to let me know this and be comforted that the answer will be coming.

Thirdly, I  expect my counsel to listen to my needs.  Do I need every dime I can get out of the litigation, or is there a range of results?  What is the range, and most importantly what is the cost /benefit analysis at each stage?  If I have three children and my spouse argues that his personal business only earns $40,000 per year, and he lives otherwise, this may require more resources and time than someone who is arguing the difference between an income of $100,000 and $110,000. What are the costs in continuing?  Is the cost of continuing likely going to outweigh the result?  What are the emotional and psychological costs?  Can I afford the time to deal with a minor issue – is it worth that last court appearance if I am in a new job that I love – and the attendance might prejudice it?  I always look at the person across from me and wonder if I were in his or her position, what could I afford?  How far would I go?  Do I need this “win” (and by the way sometimes one needs a “win” to stop further litigation harassment).

Now that I am on the other side of the desk, I have also learned a few other things.  I cannot control what is happening and I leave that to the expertise of the lawyer I have researched and chosen.  But, I realize that the minor issues that even I sometimes forget about when I am counsel can be very frustrating and even undermine an efficient and reasonable settlement.  For example, facts not relevant to the action are sometimes incorrect in briefs.  While this usually makes no difference in the final result, it can be very frustrating to a client.  The client wonders if the lawyer cannot get a name of a child or a birthdate or other fact straight, is he or she really listening to me?  Do they really care, or am I just a file number?  This is important to a client.

Keep the client apprised of what is going on.  A very intelligent and caring clerk told me to always send everything to the client – keep them apprised about what is happening.  This gives your client confidence and with confidence, the ability to accept recommendations in an educated and objective manner.  Without this information and knowledge a client may be hesitant to accept recommendations. Keeping them up to date as the matter proceeds allows for fair and intuitive analysis and makes the job so much easier for everyone.

In the end a client ought to expect a caring devoted counsel, not a friend.  One should know all the pros and cons to the matter and the eventual results early on.  Is there a game plan? And are you part of the development of the plan?  Do you have a contact if the lawyer is not available?  Ask yourself before any communication, what do you need to learn? What information do you need?  If your lawyer asks you to do something (disclosure, productions, medical reports) they are doing it for a reason.  If there is trust and communication, this will expedite the process and provide a team approach.  Think of the lawyer and his or her staff and associates as your team and like in any good sports team, set up a game plan and try to stick to it.

_____________________________________________________________________________

Kim Kieller is  a partner at Barriston, practicing  in estate and matrimonial (support and property issues) matters, mediation and arbitration.  For the record, the litigation she is involved in has nothing to do with any of her areas of practice!

Catherine Hyde, Family Law Clerk

In the movies there always seems to be one spouse trying to get the other to sign the “divorce papers” so that they can get remarried. Think “Sweet Alabama”. In Canada, our procedures are somewhat different.

There are two streams for divorces. It is either an Uncontested Divorce in which case all of the outstanding issues (property, custody, access, support) have been resolved (by way of Separation Agreement, Minutes of Settlement or Court Order) and neither party opposes the divorce, or a Contested Divorce in which case you have yet to resolve those issues and one party does not agree to proceeding with the divorce. In a contested matter, there is the opportunity to sever the divorce from the corollary relief (property, custody, access, support), if both parties agree to it. 

Grounds

In order to obtain a divorce in Canada, there must be a marriage breakdown. Marriage breakdown may be: Separation – living apart for one year; Mental or Physical Cruelty; or Adultery. 

Can I do it myself?

In the case of a contested divorce you should seek legal advice as to your rights and what the steps are in your specific case. Even in an uncontested divorce it is best to obtain legal advice with respect to your rights and whether in fact  you have dealt with all the outstanding issues or if you first need to obtain a Separation Agreement dealing with all of your rights. Once that step has been taken and both parties agree, you can proceed with the uncontested divorce.

You can prepare the paperwork yourself, however, the Application or the Affidavit can be returned by the court staff where you file it if certain information is missing. This can cause a delay in the process.  If you do not know where your spouse resides, there may be other steps to take in order to complete service. If an amount other than table amount is being paid for child support there will be further explanations required in your materials. These are factors to be taken into consideration when determining if you wish to do it on your own.

Steps in an Uncontested Divorce

The Application must be completed and issued by the Court. Once issued, you must arrange for service (unless it was a Joint Application) either by mail with an Acknowledgment of Receipt card signed by your spouse, or by personal service. The spouse then has 30 days in which to respond. If there is no response, you can proceed to file your documents with the Court to request an uncontested divorce. This will include your Affidavit and draft Divorce Order. The Judge will review the documents and determine whether the divorce should be granted. The Court will then issue the Divorce Order and mail it to the parties or provide to counsel of record.  31 days after the Divorce Order has been granted, you may attend at the Court Office and obtain a Certificate of Divorce. At each stage there are filing fees to be paid to the Court.