Category Archive: collaborative law

1. The Impact of COVID-19 on Business Valuations

   May 12, 2020 6:15 pm Comments Off on The Impact of COVID-19 on Business Valuations

   

   by Ian Lobo
   Original post: https://sbpartners.ca/business-valuations-and-covid-19/

   SB Partners Valuations Division participated in a Virtual Town Hall focused around the impact of COVID-19 on business valuations. The talk was organized in collaboration with several global valuations governing bodies including the Canadian Institute of Chartered Business Valuators, American Society of Appraisers, and The Royal Institution of Chartered Surveyors.

   A panel of valuators and appraisal experts offered practical advice on the impact of the pandemic on valuations and those whose charge is to complete them.

   Listed below are five key highlights:
   1. Valuation conclusions will be lower in comparison to the periods prior to COVID-19, all else equal.
   While being a rather obvious expectation, the Pandemic is causing declines in value as profits are diminished and overall risk has increased. From a quantification perspective, one of the esteemed panelists for the town hall indicated that he was expecting on average a decline in the total value (enterprise value) in order of magnitude of between 10% to 15%.

   2. A change in valuation modeling
   Valuators will be hard-pressed to capture the volatility of earnings and cash flow generation as well as the risk and uncertainty in their cash flows using “normal” valuation models. Of all the tools in a valuators tool kit, the Discounted Cash Flow Model and variants will likely be the preferred and most generally accepted means of deriving an appropriate valuation conclusion. This is because the methodology enables valuators to capture both the declines and ultimate improvement in earnings over time adjusted for risk capturing the swing in a company’s business cycle as caused by the Pandemic.

   3. Valuation dates – (Pre and Post Pandemic)
   A fundamental valuation principle is that “Value is determined at a specific point in time. It is a function of facts known or knowable, and forecasts made at that particular point in time”.

   In completing a valuation, the date selected will be important, as with any valuation the valuator is required to use all known facts and information knowable at this date, however, given the speed of progression of COVID-19, there could be vast differences in value conclusions over a short period for any company. A valuation completed on December 31, 2019, would likely be significantly higher than a valuation completed on March 31, 2020, just three months later. Under any circumstance, both internal and external changes that impact the prospects of a business will likely lead to a change in value.

   In the context of valuations for family law, equalizing on values that were determined well in advance of the onset of the Pandemic (i.e. Prior to March 2020) will prove challenging for the business-owning spouses, as the intrinsic values determined will likely be significantly higher than the amounts the owner could actualize realize on in a transaction following the start of the Pandemic (declared globally by the WHO March 11, 2020).

   4. Cognizant of management and client biases
   Now more than ever, client biases from minimal valuations for family law purposes in order to reduce amounts paid to ex-spouses for equalizing family assets; to management taking ‘baths’ on asset (i.e. goodwill and intangible assets) impairments, will require valuators to maintain a healthy level of professional skepticism when vetting assumptions regarding the outlook of subject companies, and the volatility of expected cash flows in relation to the impact of COVID-19.

   Value is prospective as it is the present value of all future benefits anticipated to accumulate by virtue of ownership of a business. With so much uncertainty and volatility during this current environment, it will be difficult for valuators to conclude on intrinsic valuations of companies, as management’s outlook will need to be checked to industry and economic outlooks, wherever possible.

   5. Merger and Acquisition Activity, Private Equity and Dry Powder
   It was also communicated that there is some optimism for M&A transaction values and volumes despite the negative impact of COVID-19 and investors’ current palettes for risk. However, private equity firms are expected to take advantage of depressed values caused by the Pandemic considering the continued large amount of available dry powder, mitigating the impact of the decline in intrinsic valuations due to COVID-19.

   As Canada is faced with significant unemployment rates, worsening as the virus decimates the economy, a significant Federal deficit that is exploding, future tax increases are a given. The economic damage occurring daily is also significant. However, recovery is also a given, what goes down must come up, it is only a question of timing – the same will hold true with business valuations.

   by Ian Lobo
   Ian is Vice-President of the Valuations Division with SB Partners, with over 15 years of experience in professional accounting and advisory services.

   SB Partners LLP
   3600 Billings Court, Suite 301, Burlington, ON , L7N 3N6
   Tel: 905-633-6342
   Toll-Free: 1-866-823-9990, ext. 6342
   Fax: 905-632-9068
   Email: ILobo@sbpartners.ca

2. Whistle While You Work

   September 22, 2017 2:30 pm Comments Off on Whistle While You Work

   
   By Noel N. da Silva

   Happy Days. Just like Fonzie, Richie and the rest of the Cunningham family on the 70s sitcom Happy Days, it is great to go to work with a smile on your face, accomplish what your client wants and get paid to do it. This happened recently in a file in which an engaged couple wanted a Cohabitation Agreement that would
   become a Marriage Contract when they marry. Lawyers are often leery about doing this type of domestic contract as so many have been set aside by the courts. They are problematic because they can also be the source of a Law Society complaint.

   After the initial approach from the client we decided to use the Collaborative Law method to negotiate the terms of the agreement. I only open a collaborative file if there is a properly trained lawyer representing the other party. Here I was fortunate to have such a person who was a very cordial, smart, detail oriented lawyer who is a member of Collaborative Practice Toronto.

   During the first meeting with the client the financial disclosure aspect of the negotiations were discussed among many other subjects and issues. By the time our first collaborative meeting took place I was able to present a draft Financial Statement of the client to the other side along with a disclosure brief of the client’s assets, liabilities, income and tax returns. Prior to the meeting a telephone call took place to discuss the agenda and what we wanted to accomplish for our clients. The open, respectful discussion was very helpful to make the first meeting efficient and to the point. The clients appreciated that. We were not wasting their money. The other lawyer also arrived at the first meeting with her client’s Financial Statement and disclosure documents.

   Even though lawyers in the collaborative law/practice process maintain their roles as advocates, the clients were encouraged to speak and express their goals and everything they wanted to achieve with the agreement. We discussed their instructions, assets structure and how future acquired assets were to be dealt with. It is vital to have full participation from the clients. After all, it is their life and their agreement.

   We set the date for the next meeting, assigned homework to the lawyers and parties. Then a debriefing session of a few minutes was held with each client and then with the lawyers only. The purpose was to see what we could do better next time, iron out any misconceptions and discuss any other concerns.

   At the next meeting in Toronto, which was less than an hour in length, all remaining issues were ironed out. The sample property division calculation was explained and amended for clarification. The other lawyer generously took on the drafting task. I have revised that draft after a review. Once each client reviews it and signs, the deal will be done.

   If you saw and heard a person in the car next to you, whistling on his way to and from work, it was me. It is terrific to practice law this way. The simple secrets for a takeaway were signing a participation agreement not to go to court, full disclosure, open, respectful dialogue and good faith negotiations. It is so refreshing!

   Noel da Silva is a Brampton Family Lawyer and Mediator trained in the Collaborative Process. He is a member of Peel/Halton Collaborative Practice, Collaborative Practice Toronto, Ontario Collaborative Practice Federation and the International Association of Collaborative Professionals.

   Email: noel@sdslawfirm.com
   Telephone: 905-457-1660 ext 229

   Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

3. All for One… One for All – Collaborative Process OR Collaborative Lifestyle

   August 10, 2017 2:16 pm Comments Off on All for One… One for All – Collaborative Process OR Collaborative Lifestyle

   

   by Marty Klein

   In 2007, after twenty-three, war-torn years of litigation, I just knew that there had to be a better way of resolving conflict in people’s lives. Thus began my quest – my journey into the world of alternate dispute resolution.

   So I figured, “ if I’m going to do this, I better do it right. Therefore, unlike most individuals, I didn’t follow the basic, “required courses,” rather I pursued and ultimately graduated with an Advanced Certificate in Conflict Management and Mediation at Conrad Grebel College, University of Waterloo. In September 2007, I completed my Level II collaborative training. And then, in November 2014, I became an accredited mediator (AccFM). More recently I was certified as a specialist in both family mediation and arbitration (FDRP Med & FDRP Arb).

   The collaborative process has always captured my heart. Yet, I am seriously beginning to wonder whether I have a skewed (misconstrued) and perhaps unrealistic understanding of what the collaborative practice is all about! My understanding of the process has always been that all of the “players” (lawyers, parties and professional neutrals) are in it together. You know, “all for one – one for all.”

   Rest assured, though I may appear to be naive, I am certainly not that disjointed to appreciate that when we are dealing with partnership breakdown, emotions run high and people, even in the best of moments, can experience grave difficulties, as they walk through their brokenness.

   I’m worried! Over the past year or so, I confess that I am becoming growingly disappointed with the collaborative process. Many of my colleagues, who once were diehards – sold out practitioners and professionals, are dropping by the wayside, looking into other dispute resolution processes.

   Why is this happening? Why have we gotten off the track? How can we restore what I have truly believed to be a good thing? Is it because the process is mostly lawyer-driven? And let’s face it, we know what lawyers are capable of doing when it comes to conflict!

   In the past five years, alternate dispute resolution training has ballooned. Myriads of lawyers and non-lawyers are attaining their accreditations. Many lawyers have plainly had it. They are being driven from court-based resolution in order to find and seek out more peaceful ways of resolving disputes. Many of us are finally “getting it” and truly beginning to realize that we need to allow and facilitate people in taking back control in their lives and in their destinies.

   Although many of my colleagues would prefer to eradicate litigation in their lives, they are unable (choose not?) to do so – some because there are too many mediators and not enough business, and for others? Let’s face it, litigation breeds financial prosperity. After all, there are not many jobs that pay you a handsome return for simply sitting around for hours, waiting for your case to be heard. This leaves me thinking: “can one live the schizophrenic life of both litigator and collaborative practitioner?” For those of us who are in the collaborative practice, we’ve seen it over and over again – aggressive lawyers conducting four-way meetings under the collaborative banner, but in a most litigious and positional manner.
   In 1990, in the City of Minneapolis, Minnesota, a lawyer by the name of Stuart Webb founded “collaborative divorce.” After fifteen years of practicing divorce law, Stuart “got it” and decided to take action and do something about all the road blocks and frustrations he kept running into, by settling divorce issues in court. The collaborative process had begun. Soon, other lawyers joined in, intrigued with the concept of finding resolution outside of court.

   The idea of working with an opposing lawyer, as a team, convincing a couple not to go to court, caught the hearts of other lawyers. In San Francisco, they began to realize the necessity of incorporating, psychologists and social workers to join their “team” as divorce coaches and child specialists. And then came the financial consultants and other “neutrals,” working alongside of legal counsel.

   We’ve all seen the videos – you know, where clients and their lawyers pleasantly sit around the table working through their issues – problem solving and generating options. Everyone seems to be so respectful of one another and it is clear that “my needs are your needs and your needs are mine.” In other words, “we are going to find resolution and solution, by putting the other party’s needs before my own.” It’s actually kind of like a religious experience!

   Please do not misunderstand me. I am not, for a moment, mocking or dismissing the process. In fact, this is exactly the way I envisaged and hoped the collaborative process was all about. It’s bad enough that we all have to deal with the emotions surrounding breakdown. Yet, could it actually be possible to be an advocate for a client, and at the same time, work for the good of a family as it is being forced to restructure and recreate itself, due to its breakdown?

   I hope that as others read this article, they will be challenged to re-examine as I have been, in hoping for a better way to bring resolve in people’s lives. And there will be others who will say that my “vision” for what I think the collaborative process is all about, is not the collaborative process at all, for I am only creating huge conflicts of interest, by serving and meeting the needs of the entire family unit.

   Sadly, I am finding myself in cases, where lawyers, who have never been trained in the “collaborative process,” are more “collaborative” in the way and manner in which they practice, then those who have had all the training and have gone to all of the conferences. As it is said, “You can change the ‘form/system’, but you may not necessarily be able to change the people.”

   It is my premise – my underlying philosophy, that in order for you to be a “true” collaborative lawyer or practitioner, your lifestyle – your philosophy – the way you conduct your own life – must be collaborative. It is my challenge, both to the reader and me, that if you dare to be a “true collaborative process person,” you need to “walk the talk.”

   It never ceases to amaze me how lawyers continue to have one foot planted in the world of litigation and the other in the collaborative world. The explanation, I have been told, countless of times: “When I do collaborative, I’m collaborative. And when I do litigation, I’m a damn good litigator.” I disagree. Our underlying world and life view will permeate and affect the way in which we deal with conflict. Lawyers have been trained (minds moulded in law school) to discern the issues and pinpoint the problems, but we are dreadfully lousy at generating possibilities in resolving those issues.

   I am convinced that under the collaborative practice, each lawyer must be responsible for moving his/her client away from artificial bargaining positions, in order to focus on their real needs and interests to seek “win-win” solutions for both partners, and of course – the children.

   All for one – on for all? Can this be our mission statement for the collaborative process? Can we, as lawyers and as professionals in the collaborative process, walk that philosophy? Am I wrong in my thinking? Am I out to lunch in even dreaming this way?

   Marty Klein is a member of the Peel Halton Collaborative Practice Group. He has been a family law lawyer for over three decades. He is also an accredited mediator and trained in parental coordination. Above all else, is Marty’s relentless commitment to “fairness” and pursuit of “no-court” resolution of conflict.

   Klein Law
   4632 Dunedin Crescent, Mississauga, ON , L5R 1M2
   Tel: 905-272-2540 Fax: 905-272-2100 Email: marty@kleinlaw.ca

4. Learning from our Clients – The requirement for a Standard Participation Agreement

   January 9, 2015 6:40 am Comments Off on Learning from our Clients – The requirement for a Standard Participation Agreement

   

   by Marian Gage

   As Collaborative practitioners we receive our most important feedback from the clients who retain us and choose this process.

   I’ve recently had the opportunity to speak with a former Collaborative Practice client about his experience with the process. He was not my client and I will call him “John Smith” although that is not his real name. It was not a good experience. It was certainly not the experience that we, the professionals, anticipate when we promote the process to potential clients. What went wrong? What can we learn from Mr. Smith’s unfortunate experience?

   Mr. Smith started out as all collaborative clients do. He chose a lawyer trained in Collaborative practice. He and his lawyer began communicating with his wife’s lawyer who also advertised herself as a trained Collaborative lawyer. But things quickly took a wrong turn when it came time to sign a Collaborative Participation Agreement.

   “(My lawyer) and I were asked to sign a collaborative agreement that excluded any disqualification clause and demanded mandatory arbitration if we failed to come to an agreement in 6 months.”

   The “disqualification clause” Mr. Smith refers to is the standard provision in the Collaborative Participation

   Agreement that provides that if either party terminates the process and begins litigation both parties must “start from scratch” with new lawyers and the collaborative lawyers participating in the process may not transition to a litigation process with their clients. Among other reasons this is intended to be a disincentive to litigation.

   Those of us familiar with the practice know that this is not only odd but in direct contrast with a process that has the goal of encouraging dialogue and negotiation without the threat of litigation looming in the background.

   Mr. Smith agreed that requiring all clients and lawyers to sign a standard participation agreement would provide clarity about the process up front. In his words, “I was blindsided by the process and would have known more quickly what I was up against if this was the standard practice.”

   Mr. Smith’s lawyer, a well-respected Collaborative family lawyer, attempted to continue negotiations in a “collaborative” manner.

   According to Mr. Smith, “they (his wife and her Collaborative lawyer) were highly aggressive and combative and I was forced to move to a litigation lawyer…my lawyer had continuing difficulties with the other lawyer and we were very close to going to court. I finally signed an unequal agreement to cut my losses.”

   This is not the way we profess to practice, however, there are lawyers who have taken the training that allows them to sell themselves as Collaborative family lawyers. If our clients find themselves in a process with such a lawyer they, like Mr. Smith, will likely have a miserable experience. This tarnishes the reputation of a process we are trying to promote as a better way to resolve family disputes.

   As professionals working in this area we have no control over the lawyer our client’s spouse or former spouse chooses (nor should we) and we have to work with what we are given. If the other lawyer is not prepared to uphold the basic tenets we learn are so important to the process, sometimes the best we can do is explain this to our clients so that they do not walk away thinking that what they experienced was, in fact a Collaborative process.

   For clients seeking out Collaborative family lawyers it is important to ask a potential lawyer how long he or she has practiced in the area, what training they have as a Collaborative practitioner, how many recent cases he or she has done where the parties signed a Collaborative Participation Agreement and what the practice means to him or her.

   Collaborative practitioners are at odds as to how much regulation and oversight this practice area requires. I will not comment on that in this article. Mr. Smith’s case highlights the need for Collaborative lawyers to insist on a standard Participation Agreement that sets out a true Collaborative process.

   By Marian Gage, B.J., LL.B, AccFM
   Berry Gage
   Family Law & Mediation
   165 Cross Avenue, Site. 301
   Oakville, ON
   L6J 0A9
   Tel: 905-338-7941
   Www.bgfamilylaw.ca

5. Focus On: The Family Professional

   July 17, 2014 9:18 am Comments Off on Focus On: The Family Professional

   

   By Marian Gage, Family Law Lawyer

   One of the most appealing qualities in the Collaborative Process is the idea of the “team model.”  Lawyers are present to give advice and advocate for their clients (in non-adversarial way) and, usually early on in the process, lawyers and parties discuss the benefit of adding additional, neutral members to the process to assist.       

   In many cases Family Professionals are an integral part of a collaborative team. 

   Sheila Brown is a registered social worker, mediator and separation coach with more than 25 years of experience whose practice specializes in working with families going through separation and divorce.   As an experienced collaborative Family Professional, Sheila explains that she can play a variety of roles in the collaborative process, depending on the participants’ needs.

   Sheila describes the most common role she takes on:  “Helping parents to work out a plan to cooperatively co-parent their children and clarify their expectations of one another with respect to the children so that they are kept out of the middle of conflict. “

   Sheila notes that she also assists parents to understand how children may experience separation at different stages of their development and how to talk to their children about separation.

   At times she will play the role of “child consultant.”  In those cases she will meet with the children and bring their voices to the process so that the parties and their lawyers can coordinate the needs of the children with the needs of different family members.

                   “Sometimes it’s important to separate the work of the parents from the emotional needs of the children.  So having a family professional who is not the same person working with parents to mediate the parenting plan is helpful.  That way parents are both getting feedback from someone that they’re not working with in an ongoing way.”

   Sheila can also work as a neutral facilitator of the process, and in that role she ensures that all of the parties have the opportunity to be heard in a safe and respectful environment.  Sheila says she sees her role as helping people to bring their “best selves” to the table, “so they aren’t negotiating from positions of anger or guilt.”

   When asked what people need to bring to the table to be successful in the collaborative process, Sheila observes that there must be some willingness for each person to look beyond their own needs and consider the needs of others, “whether it be your children or your former partner…you have to have some basic level of goodwill.”  If parties enter the process with no goodwill, or a lack of willingness to consider another perspective, a positive outcome is much less likely.

   Sheila says she works to ensure that people feel respected and heard.  “I try to work so nobody feels shamed or blamed…I try to help them determine what is really important to them and why.”

   If parties are considering using a Family Professional as part of their team they are reminded that their choice is voluntary (they must both agree before the Family Professional is engaged and, certainly, it is up to the parents whether the Family Professional will meet the children). 

   Families are also reminded that in any collaborative process it’s the parents themselves making the decisions for their family.  The Family Professional is there to help but is never a decision maker. 

   “I don’t’ make recommendations.  I will give parents ideas, tell them what the research says, or share what other parents have done in similar situations but ultimately decision-making rests with the parents as they know their children best.”

   When asked what she loves most about her work as a Family Professional, Sheila says it’s knowing that she’s helping parents to reduce conflict, which helps the children in the long term.  “It’s believing that…in some small way I’m helping to create peace in families.”

   Marian G. Gage O’Connor MacLeod Hanna LLP  700 Kerr Street Oakville, ON L6K 3W5

   Profession: Family Law Lawyer  Tel: 905.842.8030 x3312 Fax: 905.842.2460  gage@omh.ca www.omh.ca

    

   Sheila Brown, MSW, RSW, Acc.FM (OAFM)  Sheila Brown & Associates 222-345 Lakeshore Road East Oakville, ON, L6J 1J5

   Profession: Registered Social Worker & Mediator  Tel: 905-844-1200 Fax: 905-844-1255 sheila@facilitatingchange.ca  www.facilitatingchange.ca

6. Outside the Box: Using the Collaborative Process for Collaborative Agreements and Marriage Contracts

   May 15, 2014 2:22 pm Comments Off on Outside the Box: Using the Collaborative Process for Collaborative Agreements and Marriage Contracts

   

   By Marian Gage

   When a potential client comes to me for the first time, already-drafted marriage contract in hand, asking me to read it over and sign the certificate of Independent Legal Advice (and quickly because the wedding is this Friday!) I find myself looking for the nearest exit. There are no fees that can compensate me for the potential liability and I must politely decline.

   Even when there is ample time and a not-yet drafted agreement and both parties are ready and willing to make full financial disclosure I must admit marriage contracts and cohabitation agreements make me a little apprehensive. There is, whether it is real or perceived, a concern that these agreements are vulnerable to litigation to set them aside in the future if a couple separates. Even if a court upholds the agreement there is the risk that the lawyer will be named in the lawsuit. There is also the risk (inevitability?) that this happy couple, optimistically planning their lives together, must now be exposed to the unpleasantness involved in negotiating a domestic contract.

   The negotiation of a marriage contract or a cohabitation agreement must be handled with greater care, taking into account that we are working with an “intact” couple, often at the beginning of their lives together as spouses. Nobody wants to rock the boat…but we have to have some difficult conversations if the negotiations are to be meaningful.

   The collaborative process is well-suited to this type of negotiation for several reasons…
   • Both spouses and their lawyers can work together as a team to address each person’s concerns and work through potential problems.
   • Collaboratively trained lawyers and, where necessary, a neutral facilitator can work with the parties to help them talk with each other about their financial goals and interests in a way that will not appear to be adversarial.
   • The parties can exchange complete and reliable financial disclosure by discussing what is required together with their lawyers (and why it is required to make the agreement reliable) and if necessary, parties can work with a neutral financial professional.
   • Where estate planning is an issue we can include the estates lawyer as part of the team as opposed to sending the couple off to that lawyer at the end of the process to prepare wills “around” a marriage contract.

   I would think that an agreement negotiated through the collaborative process is inherently less vulnerable to a claim to set it aside in the future as it is much less likely the agreement will have been negotiated under duress, or without appropriate disclosure, or with potential for a substantially unbalanced result.

   Given the high rate of satisfaction clients have in using the collaborative process to resolve the issues that come up on separation I have been spending time working with my Collaborative Participation Agreement to tailor it a process for negotiating marriage contracts and cohabitation agreements.

   Marian G. Gage O’Connor MacLeod Hanna LLP  700 Kerr Street Oakville, ON L6K 3W5

   Profession: Family Law Lawyer  Tel: 905.842.8030 x3312 Fax: 905.842.2460  gage@omh.ca www.omh.ca

7. Custody: The Empty Battle

   March 17, 2014 10:25 am Comments Off on Custody: The Empty Battle

   

   By Paul Steckley

   I’m often asked about the importance of obtaining custody of a child when parents separate.  My answer to most prospective clients always reminds me of the story of Pyrrhus.  Pyrrhus was a king in ancient Greece and acclaimed by the ancient scribes as one of history’s greatest military leaders.  He successfully defeated the Roman army at the beginning of its ascension to the eventual Roman Empire, but his armies suffered such losses that he is recorded as observing, “If we are victorious in one more battle with the Romans, we shall be utterly ruined.”  Hence the term “Pyrrhic victory” has come to apply to any situation where a positive outcome might eventually lead to a much more negative one.

   A custody fight is, in my mind, the classic example of a Pyrrhic victory.  We have to remember what custody is:  the right to make decisions on a behalf of a child.  However, while this seems on the face of it to be a crucial issue, in most cases it simply isn’t worth the battle, and all of the negative energy that comes with it.  If we look at what important decisions need to be made for a child, they basically come down to a few standard questions.  What school will they go to?  What sports and activities will they be involved in?  What medical treatment will they receive?  What religion will they practice?  Many of these questions are answered early in a child’s life, and every parent hopes they never have to make a decision about a serious medical procedure.  By the time that most parents separate, usually the child’s education path has been decided.  They usually just follow the parents’ religious and spiritual upbringing.  There’s actually few, if any, really important decisions left to make.

   Yet, it’s not uncommon to see parents willing to go to Court to fight over custody.  But if custody is simply the right to make decisions for a child, for whom those decisions have usually already been made, what really is the fight about?  In most cases it’s about nothing more than exacting some sort of revenge or advantage over the other parent; one last opportunity to “win” in the separation process.  However, those fights are protracted and expensive.  By the time they are concluded, the “winner” has exhausted a great deal of time, energy, and money to obtain a Court order granting them custody, with all of the negative energies and emotions that the fight elicits from the losing spouse.  It’s not uncommon to find parents after a custody battle refusing to speak with each other, sometimes refusing to even be in the presence of the other.  Ultimately, the child suffers because the relationship between the parents has been irrevocably damaged.  The “winning” parent has obtained their goal but in so doing has poisoned their relationship with the other parent.  As well, the “winning” parent often feels dissatisfied with the result because they then experience a level of distrust and uncooperative behaviour from the other parent that the simplest of parental tasks, such as arranging for one of the parents to attend a child’s hockey game, becomes a vitriolic battle of wills.  Parents have to arrange separate parent teacher interviews because they can’t stand to be in the same room with each other for even fifteen minutes.  The child feels this tension and constantly feels torn between two fronts.  Ultimately, there is no winner in a custody battle.  Truly, Pyrrus’s words ring as true today as they did thousands of years ago.

   Paul Steckley, B.A. (Hons), LL.B. 102-2680 Matheson Boulevard East Mississauga, ON, L4W 0A5	Profession: Family Law Lawyer Tel: 905-487-5467 Fax: 905-487-5465 paul@paulsteckley.com www.paulsteckley.com

8. The Collaborative Process: A One-Stop Shop for Resolving…

   March 14, 2014 4:40 pm Comments Off on The Collaborative Process: A One-Stop Shop for Resolving…

   

   Marie Nickle LL.B LL.M Acc.Fm

   The Collaborative process is my favourite alternate dispute resolution process. Unlike mediation, it is a one-step model.  Mediation requires two steps: one to reach a consensus with the mediator; and two, to receive independent legal advice from lawyers who will also turn the Mediation Report into a legally binding agreement or court order.

   The Collaborative process is a full service model as it includes all necessary professionals, including lawyers. When lawyers have been involved from the outset they understand the thought processes that went into the construction, unlike many mediations where lawyers are not present during the mediation sessions and are handed a Mediation Report cold, without any context as to what is important to the parties and how the agreement captures the optimal results, crafted by the parties themselves.

   Throughout the Collaborative process, the lawyers are ensuring the agreement meets all the necessary legal requirements and that the clients are legally protected, while the other professionals are providing other necessary and valuable services for the parties. The Collaborative process can be thought of as the process that is a one-stop shop for resolving family conflict upon separation.

   Marie B. NickleThe Galleria 204-1715 Lakeshore Rd. West Mississauga, Ontario L5J 1J6

   Profession: Family Law Lawyer, Mediator, Collaborative Trainer Tel: 905-823-1232 Fax: 905-823-7104 mariebnickle@bellnet.ca www.mbnlegalresolutions.com

9. Financial Disclosure in Family Law

   March 12, 2014 10:16 am Leave a Comment

   

   By Kathryn Jankowski, B.A., CFP, FDS, FCSI

   Chances are, if you are reading this post, you, or a close friend or relative, is going through the divorce process.  Overwhelming ranges of emotions and lack of clarity may be prevalent but add to this the need for the accumulation of all your financial documentation …all this can add to the stress of it all.

   So what do you need to provide to your lawyer or mediator?  Here’s the list:

   1) The last 3 years of tax returns.  Not only that but your Notice of Assessment as well.  Just because you disclose what you thought CRA wanted to know it doesn’t mean your return was assessed as filed.  There may have been some discrepancies as to what CRA has and what you filed.

   2) Pay stubs for the most recent pay periods.  If you get paid bi-weekly then a month’s worth of pay stubs will ensure that all your employer-based savings plans and other employment-related fees are all captured.

   3) Bank Statements.  Some of the bank statement could be in your name, the name of you and your spouse or in a business name.  All that needs to be disclosed as well.

   4) Brokerage Statements.  Or any investment related statements including taxable accounts, Tax-Free Savings Accounts and any registered plans such as Registered Retirement Savings Accounts and Registered Educational Savings Plans.

   5) Credit Card Statements.  This would include Visa, Mastercard as well as any lines of credit.  Also, if you have lines of credit are they secured lines or unsecured?

   6) Statements from pension plans, profit sharing retirement plans, employee share purchase programs and any other employer-driven savings plans.  If you were employed by the same employer before the marriage you might want to seek out what the value of these savings plans were before the nuptials as well.

   7) Real Estate valuations.  I strongly recommend getting an appraiser to do this job.  Not a real estate agent, an appraiser.  This valuation would be for the principle residence as well as any recreational properties or investment properties.

   8) Mortgage Statements.  Term.  Amortization. Mortgage rate.

   9) Insurance.  Both health insurance, even if it is covered by your employer, and life insurance, whether it be a group benefit through an employer or your own personally owned plan.

   10) Business Interests.  If you own your own business all the details of your business must be disclosed such as tax filings (if they are filed separately from your own return) and audited business statements.  Typically, business valuators have to come in to do an assessment as to the value of the business.

   I would advise that you get all this together even before you go see a lawyer…to save time and, potentially, some legal fees.  Keep in mind, too, that there are other experts out there that can help with the disclosure documents….such as a Financial Divorce Specialist.

10. Family Law Disclosure

    March 10, 2014 12:30 pm Leave a Comment

    

    By Paul Steckley

    I’m reminded of a situation that really brings home the importance of being honest and frank in your disclosure in a family law matter, whether it in a  litigation setting or collaborative, which I’d like to share.  It involves a divorcing couple, where both the husband and wife felt they were each owed an equalization payment from the other.  The main area of disagreement between them was that the wife had been operating a business prior to separation that she claimed had stopped operating and was essentially worthless at the time that the parties separated.  She even went so far as to hire a certified business valuator who completed a report indicating that the business was essentially worthless as it was not operating and had no assets on the valuation date.  The husband knew that he business had stopped operating but disagreed that the business was worthless as he knew that some of the business’s assets were unaccounted for.  The matter proceeded to trial, where it was revealed that the wife had in fact been less than truthful.  She was forced to admit that not only had she hidden some assets from the business but that at least one of the assets was fairly valuable and had been sold recently.  She had even gone so far as to hide this information from her own lawyer.

     

    This shocking revelation basically lost her the trial, as the judge found that she lacked credibility and that her evidence, including the evidence of the business valuator, had to be ignored completely.  This even included her evidence that proceeds of the sale of the asset were subject to taxation and the payment of legitimate debts.  Because of her lack of credibility, the judge ignored everything expect for the gross value of the sale.  The end result was that the wife had to make an equalization payment to the husband, a significant swing from the result she had attempted to manufacture, and probably more than what would have happened had she been honest in the first place.  Had the true value of these assets been disclosed earlier, the business valuator might have been able to minimize the effect by factoring in taxes and various costs associated with the assets, reducing their value and perhaps eliminating the need for the equalization payment.  It is easy to see why she was lured to the idea of hiding assets, thinking that it would give her an advantage in the litigation.  However, in this case the lack of full and frank disclosure did not pay the dividends she was expecting.  And not including her lawyer in on this subterfuge meant that she denied herself the benefit of guidance from her lawyer that may have made her realize that her attempts would ultimately backfire.  As well, a costly trial was inevitable since the husband knew she was being deceitful.  It is always best to bring forth all the information you have, and provide it to your spouse, your lawyer, and your financial professional so that it can be dealt with.  In the end it will be less costly and will likely lead to a settlement much earlier in the process.

    Paul Steckley, B.A. (Hons), LL.B. 102-2680 Matheson Boulevard East Mississauga, ON, L4W 0A5	Profession: Family Law Lawyer Tel: 905-487-5467 Fax: 905-487-5465 paul@paulsteckley.com www.paulsteckley.com

11. Dealing with Self-Represented Litigant: The Benefits of Mediation and ADR

    August 14, 2013 1:24 pm Leave a Comment

    By Fareen L. Jamal and Jesse Lamont

    Occasionally, clients are faced with situations where their spouse opts to represent her or himself.  This can make an already difficult situation worse.

    A self-represented party does not have the benefit of objectivity, and emotion, stress, and legal inexperience often impact their conduct. This can make for a more legal experience.  When a self-represented litigant appears ignorant of the law, counsel for the represented party will need to spend increased time and provide repetitive explanations to ensure that the self-represented party understands their obligations and that there are no misunderstandings.¹   This can be very frustrating for everyone involved, particularly because it often leads to protracted negotiations.

    To be fair, given that the cost of a three-day trial in Ontario is estimated at approximately $60,000, which surpasses the average per annum income of the normal Canadian family²,  it is not surprising that litigants are increasingly forced to represent themselves in court. Alternatively, given the increased access to free courtroom services and the proliferation of legal information laced into television shows, litigants with heavy financial burdens are often convinced that they are well equipped to represent themselves.  With celebrities such as Courtney Cox and David Arquette making self-representation look easy³,  some parties facing daunting legal costs may opt to represent themselves.

    However, a client would never consider fixing their own root canal or performing their own open heart surgery, and particularly given the nature and complexity of family law, I could not recommend that a party represent themselves.

    Mediation, collaborative family law, and other alternative dispute resolution models offer less expensive alternatives to a court trial and may be more palatable for your self-represented spouse. Given that self-representation often results in delays in divorce proceedings, which are amplified by the emotional undercurrents related to the breakdown of a relationship, mediation, ADR, and collaborative law practices offer a financially viable – and often more satisfying – surrogate to a trial.

    If you find yourself in the position of dealing with an estranged spouse who opts to self-represent, consider suggesting that you resolve the dispute through mediation or that you both retain collaborative family lawyers.  The short term and long term benefits are undeniable.  Your funds are better spent on yourself and your children than on increased court costs.

    __________________________________

     ¹ Fareen Jamal, “Tactical Tools for Family Advocacy,” Ontario Bar Association Continuing Professional Development, October 11, 2012.

     ² The Honourable Warren K. Winkler Chief Justice of Ontario, “Access to Justice, Mediation: Panacea or Pariah?” http://www.ontariocourts.ca/coa/en/ps/speeches/access.htm on July 6, 2013.

     ³ “Courtney Cox and David Arquette Finalize Divorce,” Ace Showbiz, <http://www.aceshowbiz.com/news/view/00060754.html>

    Fareen Jamal
    Associate Lawyer

    Bales Beall LLP
    2501-1 Adelaide Street East
    Toronto, ON
    M5C 2V9

    Tel: 416-203-4538
    Fax: 416-203-8592
    fjamal@balesbeall.com

    Jessie Lamont
    Summer Law Student

    Bales Beall LLP
    2501-1 Adelaide Street East
    Toronto, ON
    M5C 2V9

    Tel: 416-203-4017
    Fax: 416-203-8592

    jlamont@balesbeall.com

     

     

     

12. The Collaborative Process: A One-Stop Shop

    June 19, 2013 2:42 pm Leave a Comment

    

    Marie Nickle

    
    By Marie Nickle, LL.B., LL.M, Acc.Fm.

    The Collaborative Process is my favourite dispute resolution process because lawyers are present in the process to not only problem solve for clients but to protect their individual legal interests throughout. Mediation is a good process, but lawyers are often not present so that when the parties attend ultimately to obtain independent legal advice, because the lawyers’ thought processes have not gone into the construction of the Agreement, they are more likely to find problems due to their lack of understanding of what is ultimately important to the client.

    The Collaborative process is a “one stop shop” and accordingly, more effective. If Mediation included the lawyers more often, it would be a better process, in my opinion. I base this on a recent experience where I facilitated a mediation that included the lawyers, who were extremely helpful in narrowing the issues and helping to generate some options. The lawyers then went on to work together to generate a legally binding agreement for the parties. They worked extremely well together and both parties appreciated the “service” provided to them by their lawyers in helping them to resolve.

    Marie B. Nickle

    The Galleria
    204-1715 Lakeshore Rd. West
    Mississauga, Ontario L5J 1J6
    Profession: Family Law Lawyer, Mediator, Collaborative Trainer
    Tel: 905-823-1232
    Fax: 905-823-7104
    mariebnickle@bellnet.ca
    www.mbnlegalresolutions.com