Category Archive: divorce

1. Jointly Retained Engagements – Valuations Perspective

   June 8, 2020 9:49 am Comments Off on Jointly Retained Engagements – Valuations Perspective

   

   by Trevor Hood

   Original post: https://sbpartners.ca/jointly-retained-engagements

   We are often asked to be jointly retained in family law matters where one spouse is a business owner. We are engaged by both spouses to provide an independent assessment of the value of the business interests for the purposes of dividing matrimonial assets or of the income available to the business owner for purposes of child or spousal support. Until recently, the decision of the joint retention was that of the parties but that is now changing.

   Appointment of a Joint Expert by the Court

   Recent changes to the Family Law Rules (the “Rules”) effective September 1, 2019 has expanded Rule 20.1 related to independent experts into three separate Rules including the new Rule 20.3 in which section (1) provides for the Appointment of Expert by Court[1] and states (1):

   The court may, on motion or on its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case.

   While the new Rules do not go to the extreme of requiring a joint expert for all family-law related business valuation reports like in British Columbia, there will be an expected trend towards more jointly retained Chartered Business Valuators (“CBV’s”). With that in mind, we wanted to highlight five key challenges and practical considerations when dealing with jointly retained valuation experts:

   • Aside from avoiding dueling experts, the biggest potential benefit is reduced costs to the parties. However, it is our experience that the initial fees to prepare a joint report will be slightly higher given the steps required to maintain a transparent and open process and to ensure both parties are able to provide their input into the process. The larger cost savings comes from having a single expert in the court process and in testifying at trial.
   • The exception to the above is when the parties decide to hire a “shadow” CBV’s to advise and assist the parties through the valuation process.
   • The biggest challenge in our experience is ensuring that all parties are on the same page with the scope and level of work being completed. Whether it be the level of valuation report being used or the amount of forensic investigation being conducted, we have had a number of circumstances where, part way through the process, one party expresses expectations that are beyond the agreed upon scope of work and level of reporting, which in turn creates conflict.
   • Another challenge tends to be the structuring of fees and what happens when one of the parties creates an obstacle that results in additional fees beyond the original scope of the mandate. Whether it is failure to provide disclosure or making enquiries beyond the scope of the engagement, it is important that parameters are established around the payment of fees and the communication when these issues arise.
   • Despite best efforts, situations will arise where one of the parties may feel that the expert is not independent and is perceived as being biased in the favour of the other party. Ensuring that open and transparent communication occurs with all parties throughout the process is a vital step to mitigating the occurrence of this issue. Engagement letters should clearly document the communication process and steps surrounding the delivery of the report and the parties’ ability to provide feedback in support of full transparency.

   [1] Ontario Regulation 250/19: Family Law Rules Filed July 25, 2019 effective September 1, 2019

    

2. Does it matter if “I do?” What if “I don’t?”

   May 8, 2018 2:13 pm Comments Off on Does it matter if “I do?” What if “I don’t?”

   
   By Marian Gage

   The Angus Reid Institute recently published a poll indicating more than half of the respondents feel marriage is not important to them. Younger Canadians are waiting longer to get married, or they are not getting married at all.

   The same poll indicates that most Canadians feel that married spouses and spouses who are cohabiting but not married should be treated equally in law.

   The reality is that the law distinguishes between married and non-married spouses who are living together in several ways. On some issues there is no distinction at all. Here’s the brief breakdown…

   Parenting and Child Support

   It makes no difference whether a child’s parents are married, unmarried and cohabiting, or practical strangers who never shared a home. The law around parenting is child- focused and based on a child’s best interests.

   Similarly, child support is considered the child’s right and has nothing to do with the parents’ marital status or living arrangements.

   Spousal Support

   Married people are considered “spouses” who may be entitled to receive – or have an obligation to pay – spousal support once they are married.

   Cohabiting spouses who are not married are considered “spouses” who may be liable to pay or entitled to receive spousal support after they have been living together for three years, or for a shorter period of time “in a relationship of some permanence” if they have children together.

   In short, in longer relationships there is no difference between married and unmarried (but cohabiting) spouses when it comes to spousal support.

   Property

   The law in Ontario provides a regime for sharing the value of property that has accumulated from the date of marriage to the date of separation. If one spouse has accumulated greater wealth in his or her name during the marriage, then that spouse is required to share that gain with the other spouse.

   This regime only applies to spouses who are legally married. While there are some other rights and remedies available to unmarried spouses they do not share the same entitlement in the legislation.

   Matrimonial Home

   A matrimonial home, by definition, is a home (and/or cottage/houseboat/vacation property, etc.) that married spouses are occupying in the ordinary course at the time the marriage ends. The matrimonial home is treated differently than other property and married spouses benefit from certain rights with respect to a matrimonial home even if that home is in only one spouse’s name (and even if that spouse owned the home prior to the marriage, even if that spouse inherited the home, etc.).

   No matter how long two people are cohabiting, no matter how many children they have together, no matter how much a spouse contributed to the equity/value of a home, the rules about matrimonial homes do not apply to unmarried spouses.

   As self-serving as this will be given that a lawyer wrote it, I would strongly urge spouses who are thinking about cohabiting (even if there are no plans to marry) to get legal advice about what this means legally to avoid unpleasant surprises in the future.

   Marian Gage is a Collaborative Family Lawyer, an Accredited Family Mediator (OAFM), a Certified Specialist in Family Law (LSO) and a partner at Berry Gage LLP

   Marian G. Gage, B.J., LL.B., Acc.FM (OAFM), CS (LSUC)
   Cert. Specialist in Family Law
   165 Cross Avenue Suite 301
   Oakville, Ontario L6J 0A9
   Tel: 905-338-7941 ext 229
   Fax: 905-844-9765
   www.bgfamilylaw.ca

3. Ontario to change child support law to give adult children with disabilities access to parental cash

   July 11, 2017 10:10 am Comments Off on Ontario to change child support law to give adult children with disabilities access to parental cash

   

   By Diane Staples

   Right now, the law in Ontario states that adult children of married spouses are entitled to on-going child support if they qualify as a “child” under both the Family Law Act and the Divorce Act. The Divorce Act authorizes an adult child to receive child support so long as they qualify as a “child of the marriage”. Social Assistance and Disability Benefits will be taken into account in setting the amount of child support payable for these “children”. This excludes children born of common law parents. These adult children have to seek support through section 31(1) of the Family Law Act which requires them to be enrolled in full-time education. The test is whether the child is “unable to withdraw from the parent’s charge by reason of illness, disability or other cause.”

   The idea that children are treated unequally based upon whether their parent were married or not, was seen as unconstitutional and was successfully challenged Friday, July 7, 2017 in a Brampton court room. The provincial government will table an amendment to the Family Law Act to provide access to adult disabled children.

   Click the link to read about it. Ontario to change child support law to give adult children with disabilities access to parental cash

   Diane Staples, Lawyer
   #1 Wellington Road 124, Erin, ON , N0B 1T0
   Tel: (519) 833-0040 Mobile:
   (647) 226-1936
   Fax: (519) 833-0041
   Email: staplesdlaw@gmail.com

4. Tired of Reading About the “Housing Bubble?” Me Too.

   June 5, 2017 3:43 pm Comments Off on Tired of Reading About the “Housing Bubble?” Me Too.

   

   By Marian Gage

   The cost of housing has become a big issue for families who separate in Halton. It seeps into almost every negotiation or mediation as an issue…a challenge…a jackpot…depending on the family members’ goals.

   To be clear, the law has not changed. It’s the other stuff that changes now – the decisions people make when they separate and the options available to people who are now looking to live in separate homes.
   For those of us who work in Collaborative Practice and family mediation it’s all very significant. Our clients’ mutual goals are at the root of these processes.  Goals such as:

   • Residing in the same school catchment area so the children don’t have to change schools;
   • Both parents residing near each other to accommodate a shared parenting schedule; and
   • Maintaining homes with similar standards so the children feel “at home” in both parents’ residences.

   Often, one parent will purchase the other parent’s interest in a matrimonial home to allow the children to remain in the neighbourhood. These days we’re seeing house prices so high that it’s not as easy for a newly-single parent to finance that kind of a “buy-out.”

   We’re seeing situations where it might have been easy enough for one spouse to purchase the other’s interest on the day they separated, but six months later (it can take a number of months to get from the point of deciding to separate to the point where these decisions are made) that house might sell for substantially more if it were listed on the market.

   I’ve reached out to Collaborative family professionals and mediators to learn about some of the solutions their clients have come up with to try to meet their goals when it comes to the family home. In many of these situations, it’s not what a judge would do (you can talk to your lawyer about what a judge would have to do – they are bound by the law).

   Here are some of those solutions:

   Right of first refusal on sale

   In some cases, one keeps the house and the other holds a “right of first refusal” where he or she would have the first opportunity to purchase the property before it is listed for sale. I am advised that in these cases the party with this right has not exercised it and the property has been sold on the open market.

   Continued joint ownership with minimal draw

   In one case a separated spouse agreed to sell her share of the equity in the home to her former spouse based on a mutually agreed amount, however, the “selling” spouse was only taking what she needed to satisfy the down payment on her new home. For the balance owing, they signed a promissory note which paid the “selling” spouse the greater of a percentage of a future sale price proportionate to the amount owing, or simple interest at 5 per cent per year for the outstanding amount to a maximum number of years in the future.

   Defer sale

   In some cases separated spouses are agreeing to remain on title, although only one will remain in the home. They may come up with a plan to determine whether there will be continued contribution to mortgage payments and (in some cases) other operating costs. They agree on a time frame for the sale.

   Formal appraisals

   Certified appraisers will value the property (separated spouses may choose to retain one neutral appraiser who works for both of them, or in some cases they work with more than one appraiser and establish a mid-point). One spouse would purchase the other’s 50 per cent interest.

   There have been other cases where separated spouses have considered obtaining a valuation at the date of separation and a valuation at the current date to determine the percentage increase in value from separation to the date they were ready to address the issue, and then agree on some amount in between taking into account commission fees, etc.

   The issue with the formal valuations now seems to be that many houses are selling above what certified appraisers would value as their worth.

   Ignore valuations

   There have been still other cases where parties have agreed not to use the price at which they anticipate the house could be sold and instead one party has agreed to transfer his or her interest to the other for less than the expected “market value” so children can remain in the home.

   Sale on the open market

   There have a been a number of cases where the house was simple listed and sold for a lot of money. For some, the parties were happy to see how much they would receive from the sale of their home. For others, it was disappointing as one former spouse had hoped to purchase the other’s interest (they simply could not settle on an appropriate price).

   The difficulty, then, is that everybody needs a place to live and it’s not an ideal time to purchase one home, let alone two.

   I often advise my clients to seek the assistance of a Financial Divorce Specialist who can help them see their options and make sound financial decisions that work within their budgets.

   As always, when parties are working in a Collaborative process, or in mediation, there are far more options available and it’s much more likely that a family will end up with the arrangement that works best for all.

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

   Marian G. Gage, B.J., LL.B., Acc.FM (OAFM), CS (LSUC)
   Certified Specialist in Family Law
   165 Cross Avenue Suite 301, Oakville, ON L6J 0A9
   Tel: 905-338-7941 ext 229
   Email: mgage@bgfamilylaw.ca
   www.bgfamilylaw.ca

5. Acknowledging Fear

   April 3, 2017 1:57 pm Comments Off on Acknowledging Fear

   
   By Noel da Silva

   There is no getting around the role that fear plays in reparation and divorce. Every front line professional whether they are Family Health Professionals, Financial Professionals, Coaches or Lawyers, can attest to this.

   The fear factor!

   There are many sources of fear.

   Fear can include fear of the unknown. Separation for most people a circumstance they are not familiar with. Terrible apprehension comes from asking the question “Am I going to lose my kids” in a custody and access dispute. “How am I going to manage financially”, is another very real concern. People involved in a breakup are very afraid of publicity. Sometimes spouses or partners do and say awful things to each other. Police and the Children Aid Society have often had to become involved with families. At other times it is the teacher and schools that discover the families difficult problems.

   All the professionals who help separating families in distress have a unique opportunity. We can best hold by steering our clients away from conflict towards settlement oriented solutions that reduce conflict and its damage to the children and spouses.

   A conversation that produces an accurate detailing of the steps forward to obtain a separation agreement and closure is the first step towards calming the person’s fear. Screening for domestic violence which is a necessary step in keeping abused spouses safe can be calming once the abused spouse is in contact with a family health professional healing can start.

   Even knowing the worst that can happen, while not scaring the person can have a calming effect. This won’t mean having to accept a negative ¬result or position. It does mean formulating a plan, understanding next steps and actually taking those steps this is crucial towards getting rid of the fear factor.

   Collaborative Law or Collaborative Practice is an excellent way to deal with fear. It allows for each parties concerns to be voiced and most importantly heard. Each spouse is allowed to speak from the heart and state what their goals are. This usually brings out the rational best in people. Even when a goal is to avoid problems or avoiding conflict is an expressed goal it is something concrete the professionals around the table at each collaborating settlement meeting need to understand and plan to deal with.

   Talk is not enough. It is when clients see actual progress being made that they can start to take a deep breath. When they understand that their active, informed participation in the collaborative process is important this can be calming as they themselves are taking steps to resolve the conflict.

   Clients find that the process of enquiry as to what each persons’ interests really are and what lies behind the positions they are taking is also calming as there is acknowledgement that they have been understood. Once a person in distress speaks; is heard and then is understood the next step in the collaborative process which is putting the options on the table for consideration, to solve each segment of the overall conflict, can take place.

   Acknowledging and explaining our fears is part of the healing process for everyone. So there is no need to be afraid of fear and its expression. Creative solutions customized to meet each families needs, crafted into a separation agreement that reasonably protects both parties and their children is the best solution to conquering fear.

   Apprehension built up over many years cannot be entirely eliminated. The understanding possible within the collaborative process that the parties are still a family, except one that does not look the same, is very helpful. When continuing future support are also considered and built into to the separation agreement families using the process of Collaborative Practice gain an extra measure of assurance. They may even be ready to relax with a nice beverage.

   Noel da Silva is a Partner at Simmons da Silva LLP

   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

6. 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

7. 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

8. Marriage: One, Two or More

   March 26, 2014 8:08 pm Comments Off on Marriage: One, Two or More

   Here’s a link to an article that Marian Gage, Family Law Lawyer, and Kathryn Jankowski, Financial Divorce Specialist contributed to in Yahoo Finance!

   http://ca.finance.yahoo.com/blogs/pay-day-/financial-planning-second-marriage-182821020.html

   Enjoy!

    

9. The Second Marriage: Financial Considerations

   March 21, 2014 8:01 am Comments Off on The Second Marriage: Financial Considerations

   If you are going through the divorce process the first thought after reading the title of my blog is “Never Again!” right?  I know it was for me and, in some ways, it’s true what they say, “You don’t know your spouse until you divorce them!!”  Some divorcees move forward, embracing their independence. I know I painted my bedroom pink…because I could!  But all that new freedom aside, it tends to be a couples world.  It’s also nice to share moments in your life with someone special so, for me, I recanted my “Never Again” and did it a second time.

   Now it gets complicated, for sure.  We each had our children with our first spouses so there’s that to consider.  So, if my husband and I owned our home jointly then if I died my half would revert to him.  My husband could then go out an find a new mate and enjoy all the fruits of my labour with his new spouse.  My kids?  They would get nothing.  See how this works?  So what can you do to help prevent your dying wishes from going awry?   Consider the following:

   1) A prenuptial agreement.  Some say it make a business out of a loving relationship but I think just the opposite.  It protects each of your family’s wishes, their kids and yours, and sets the stage for a well thought out transition of wealth plan that is, hopefully, agreeable to both of you.  This may stop future feuding once the initial feelings of love and relationship newness wear off and you start to feel that, perhaps, the relationship is a little unfair, leading to potential resentment and chaos.

   2)  Own your home as tenants in common, rather than joint tenants, based on a percentage of what each of you put into the equity of the home.  I think, though, in terms of fairness, anything you both work on together, while married should be split 50/50.  I believe family law would support this as well.  Keep in mind that if your wealth is so lop-sided that, if you pass away, your spouse would be homeless, that might cause an issue.  There are financial solutions available such as purchasing a life insurance policy to offset any deficiencies in providing reasonable housing for the surviving spouse.

   3)  Did you know that when you say, “I do”, “I will” or whatever acknowledgement of entering a marriage contract is deemed appropriate for you, that your Will is null and void?  Yes, you have to renew your Will.  Funny thing is, I tried to renew my Will just days before my wedding and I couldn’t do it.  Not really but sort of….I had a temporary Will that stating…”In anticipation of marriage I intend my new Will to state…..” and then we formally re-did it when I returned from my honeymoon.  Needless to say, I avoided that sky-jumping opportunity, on my honeymoon, when it presented itself.

   4) Check the beneficiaries of your registered plans.  Remember that RRSP’s and the like, transfer to a spouse tax-free on first death but they are taxed to anyone else you many want to bequeath…such as your children.  Lastly, on this note, depending on how your Will is written, if you leave your RRSP assets to your children your Estate pays the tax which could be as high as 46.41%, or roughly half, and the kids get the full value of the RRSP.

   I advocate that a well-thought out plan can save many years of potential resentment and put you both on a fair playing field right from the get-go….so you can enjoy the feeling of being protected, financially, for you and future generations.

   My advice?  Have a well thought out plan before you stroll down the isle.  It may save years of grief if you don’t…and it will set you on a good path to enjoy your new marriage.

10. 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

11. 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

12. 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.