Tag Archive: children

1. 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

2. 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

    

    

    

3. How Separated Parents Could Think About Mother’s Day and Father’s Day…

   May 31, 2013 10:50 am Leave a Comment

   

   By Marian Gage

   I just celebrated my seventh Mother’s Day as a mother.  As always, I got to sleep in.  It’s the one day of the year when I am guaranateed a sleep-in.  I can start the day slowly.  I can shower and get dressed alone without my kids asking for everyting from breakfast to that puppy dog hair clip my daughter got in a loot bag three years ago and now just remembered.  My husband whisks the kids away early (ususally in their pajamas). They come back at a much more civilized time with coffee and my kid-made gifts they created at school.  We enjoy the rest of the day together.  It’s all very nice.

   On Father’s Day my husband knows he can expect the same royal treatment.

   THis makes me think about so many of the divorce cases I’ve had where we’ve been negotiating Mother’s Day and Father’s Day schedules for children.  I’ve had some really nasty cases, as I’m sure most of us have, where Dad doesn’t want to take the kids to see Mom on Mother’s Day because it’s “his” weekend and they’re going for bruch with Grandma, or where the parents fight over time, down to the minute, that they will spend with the children on each of these special days.

   In high conflict cases parents can end up spending outrageous amounts of time and money arguing over minutes – will the children be home the night before, or by 7:00a.m. so that Dad can spend the entire day with them on Father’s Day, or will it be noon after breakfast with Mom and Grandpa?

   There is, of course, a much more enjoyable way to spend the holiday, even if you’re separated.  Mom…why not sleep in on Mother’s Day and let Dad wake up at the crack of dawn with the kids, and bring them over later?  Why not reciprocate on Father’s Day and give Dad the same opportunity?  Or, if your former spouse just loves waking up early with the kdis, why not offer a break later on in the day?

   Separated parents who work collaboratively can find a way to enjoy all of the Mother’s Day/Father’s Day perks on their special days.  It’s worth exploring!

    

   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

4. Kevin O’Leary’s Cold Hard Truth on Collaborative Divorces

   January 29, 2013 4:01 pm Leave a Comment

   

   By Meredith Cox

   Kevin O’Leary is everywhere.  On the internet, on the radio, on bookshelves and on television (Dragon’s Den, Shark Tank and The Lang & O’Leary Exchange). In his new book, Cold Hard Truth on Men, Women & Money, Canada’s financial guru shares his opinions on just about everything from the use of Botox and fillers to “How to Spot a Gold Digger”.  He says we should repair our finances and not our faces.  Good to know.  He insists rich people need a prenup because good looking gold diggers are willing to date a person who is a lot older, uglier and wealthier than they are for profit.  No shock there!  We can all silently come up with tons of celebrity and real life examples.  Hmmm…

   The book’s brutally honest dissection of our relationships with each other and money makes a lot of sense.  As I read through the chapters relating to each stage of life, I reflected on where I might have gone wayward. I thought hard about the perils of “Ghost Money” (lattes, lunches and glossy magazines).  I inwardly promised to do better and congratulated myself on the smart decisions I had managed to implement so far.  From now on the balance in my “Money Karma” account will be on a perpetual upswing.

   As a Family Lawyer, I was pleased to learn Mr. O’Leary also has strong views on the merits of Collaborative Divorce.  Unlike the traditional litigation model, collaboratively trained lawyers are not adversaries.  They will work with you and the other lawyer to obtain the best outcome possible for your family.  In his analysis of how to fix or prevent various money mistakes available to us as we go through life, he gives a concise prescription for avoiding the twin legacies of agony and financial bleeding that can go along with divorce court.  I have broken it down into two categories:  no cost self-help and outside help you have to pay for.

   SELF-HELP AND YOUR CHILDREN

   1.  Be compassionate and respectful to your spouse.  Don’t let rage and jealousy cloud your judgment.  You might end up spending more money.

   2.  Do your own research on the law and the process that will work best for you.

   3.  Get and organize all your financial information.  Make your own copies to save money.

   4.  Money you have set aside as RESP’s for the children should remain in place for their benefit.

   5. Put your children’s needs first.

   OUTSIDE HELP

   1.  Don’t try to divide your assets without getting some professional help.  It can be complicated.  Property settlements are permanent.

   2.  Get lots of counselling from a mental health professional.  Stay in counselling.

   3.  Find a collaborative lawyer.  Consider mediation.  Avoid going to court.

   Meredith Cox Sweatman Law Firm 11-1400 Cornwall Road Oakville, ON L6J 7W5

   Profession: Family Law Lawyer  Tel: 905-337-3307 Fax: 905-337-3309  meredith@sweatmanlaw.com  www.sweatmanlaw.com

5. The Emotional Divorce

   October 3, 2012 11:13 am Leave a Comment

   by Fareen Jamal

   “What separates those who can obtain a smart divorce from those who can’t is this quality of being prepared to move on. They’ve done their mourning, to the extent that mourning is involved. And they have come to recognize that they are not victims. ‘This is what life has to offer. So let’s move on.”

   ~ Jeffery Wilson, cited in Deborah Moskovitch, The Smart Divorce, (Chicago: Chicago Review Press, 2007).

   Often, couples fail to properly address their grief following the breakdown of their relationship and the loss of their marriage. The grief of losing a life shared, your identity as a couple, your security and even your beliefs  If you fail to come to terms with the fact that you are divorcing emotionally from life as you know it, the legal process of divorce can become almost impossible. I have had many a file where the parties’ inability to let go of their anger blinded them from noticing the damage their decades of litigation had on their children and personal lives. They were going through the legal divorce failing to address their emotional divorce.

   Failure to identify this grief and to deal with it constructively can result in a long, arduous and expensive legal process.

   Arnold Schwarzenegger comments on the emotional impact of his divorce from Maria Shriver, after he fathered a love child with the couple’s housekeeper, in his upcoming book, Total Recall: My Unbelievable True Life Story. The New York Daily News revealed that Mr. Schwarzenegger continues to believe that he is in denial and still hopes for a reconciliation with Ms. Shriver.

   Divorcing couples must acknowledge that a divorce can divide assets and liabilities, and arrange for child or spousal support but it cannot punish your spouse for his or her bad behaviour during or after the marriage. It cannot guarantee that your support payments will be made or that access schedules will be smooth and problem-free. It cannot make your spouse change, nor will it return your life to the way it was.

   Collaborative family lawyers recognize and address the grief. Perhaps you need to give yourself a period of mourning. Then focus on how you want your life to look. Create a strong support network and recognize that you are not alone. Professional help through parenting experts, financial specialists and therapists can also help regain control of your life. Collaborative family lawyers routinely draw on other experts to assist in the process.

   As you deal with your grief, it will become easier to make legal decisions that are in your best interest. Divorce with dignity, and move on. And find a process that will support you in doing so.

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

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

    

6. “The Good Karma Divorce” as a Prescription for Successful Collaborative Family Law Outcomes

   August 3, 2012 9:08 am Leave a Comment

   

   By Meredith Cox

   In addition to all the bad things we associate with the advent of television, there is another item to put on the list. All the lawyer shows have fostered unrealistic expectations about the legal system. Television judges always seem to get “it” and they only need an hour to do so. They are always banging gavels to signify a decision has been made. Then people start hugging and shaking hands. The halls of justice are not constantly echoing with the sound of gavels and quickly dispensed rulings. The judge does not always assess the situation with the same standards of fairness as clients. This is largely why lawyers can never predict what will happen in court.

   The Good Karma Divorce is an excellent resource for anyone going through separation and divorce. As a family court judge, the author, Judge Michelle Lowrance, understands better than most why going to court is not the best option for couples. She debunks the myth that there exists a “non-discretionary standard of justice that is not dependent upon the judge’s personal values.”

   I know this all too well because I argued a hotly contested motion before a judge, who wrote out his ruling in my client’s favour before he realized he knew a relative of one of the parties. He advised us he was stepping back from the case. We went down the hall to argue the same case in front of another judge. The result was completely different. We were not successful. Same facts. Same materials. Same family. My client was gobsmacked. My competitive side was irked. No one likes to lose, but even more to the point, I learned a valuable lesson about the justice system.

   Another myth destroyed by Judge Lowrance is the notion that the judge can solve everything simply by virtue of his or her exalted position using special powers. The gavel is not a magic wand. We need to be aware that a trial decision is not the wonderfully cathartic experience we all believe it will be. Clients do not leave the court room unscathed. They limp out exhausted, emotionally depleted, imbued with renewed animosity and a lot lighter in the wallet. Moreover, the blistering aftermath of a family trial can endure for years. People remember what the other person said about them in court. Generally, testimony is not flattering and sometimes people take serious liberties with the truth.

   Family law trials are about law and not about punishing the perceived wrongdoer. In our no-fault divorce system, you don’t get to bring up adultery and watch your spouse get yelled at. Because we have watched our parents disciplining our sibling offenders with time-outs, lectures, disappointed head shaking and raised voices, we anticipate the judge, who operates with similar authority, will treat a spouses indiscretions and misdemeanours with like aplomb.

   The Good Karma Divorce gives us a comprehensive four point prescription. First, you need to develop a personal code of conduct to guide your behaviour in the face of conflict and around your children. Second, put a harness on the negative emotions that swirl around – criticism, anger, blame, resentment, etc. Throw forgiveness and apologies on the fires of conflict. Third, prevent collateral damage to your children at all costs. Children do not just forget all the ugly details. Not all children are resilient. It takes an incredible amount of effort and forbearance to raise healthy, well-adjusted children. Do not make them take sides… ever. Fourth, you must not give up when you are tired of negotiating. Never assume you are the only one compromising or that your lawyer folded in your darkest hour. This is the point where you have to dig deep.

   Judge Lowrance wants us to view divorce as an opportunity for personal transformation and not a total failure. An awareness of karma as a force presents the ability to alter your life by changing thoughts and actions. Despite the belief that our brains are fully developed by the time we are adolescents, the experts now know the brain can evolve and change its structure. The scientific word for this phenomenon is called “neuroplasticity.” This is an emerging area for collaborative teams of family lawyers, mental health professionals and financial professionals. Part of the theory is that if we anticipate, manage and understand how the brain works in stressful, trigger-laden situations, we can achieve better outcomes for families.

   The good news in all this is even if you only adopt some of the recommended behaviours successfully, you can improve your brain’s functioning. It is more like a lifestyle than a diet where you have to do it all perfectly. You can adopt the principles at any time during and after negotiations. We always hear the saying “it takes two to tango.” When just one of the parties begins to apply the basic tenets, there can be a benefit for all involved. I took heart when I read this because I kept thinking how difficult it might be to get both parties on the same page at the same time. Karma? What is that anyway? Isn’t that just for New Age self-deceiving freaks trying to comfort each other in the face of evil?

   The Good Karma Divorce holds out the promise of finding a place of composure, wisdom and bravery with an easy to follow recipe. There is a judge in our region who orders parties to read certain books and prepare summaries of what has been learned to send to the other side. This book should be recommended reading for every couple and every family lawyer on the road to separation and divorce with regular reviews to ensure the learning stays imprinted on our collective psyches.

   As a dispute resolution process, Collaborative Family Law offers a forum for separating couples to learn important life skills, prevent more harm to the family and get on with the business of negotiating from a place of enlightenment.

   Regards,

   MEREDITH G. COX | Principal
   B.A. (Hons), J.D., LL.B.
   Barrister & Solicitor, Collaborative Family Lawyer and Mediator
   SWEATMAN LAW FIRM
   1400 Cornwall Road, Unit 11 | Oakville, ON L6J 7W5
   T.905.337.3307 | F.905.337.3309

7. Collaborative Family Law Saves Resources in the Future

   July 10, 2012 10:57 am Leave a Comment

   By Christine A. Torry

   Like many of my colleagues, I have learned some fundamental truths working in the field of family law for almost 30 years. Those lessons are what led many senior practitioners to endorse the use of collaborative practice for the resolution of family disputes.

   One of the most basic truths is that despite the wish that a client may have to never deal with an “ex” again, with few exceptions, an ongoing relationship will continue for many years, usually as parents or grandparents, or for financial support.

   The cases that have been resolved through the traditional court process have a high rate of return to the court, for future problems. Family separations involve ongoing rights and responsibilities whether dealing with the parenting and time share of children, child support or spousal support. And there are always changes in the future that need to be addressed. Children get older and want to change residence, perhaps live with the other parent. There are activities to decide upon, and whether they should be competitive level or recreational. Children go to university and the cost sharing has to be decided. One parent may believe a child should contribute to post-secondary education, and the other may want the child to experience Europe for the summer. A payor loses a job, or retires, and needs to have support changed. A recipient remarries. If the parties have not learned skills to help them negotiate and reach agreement on future changes, they revert to the first method used, such as court. They can’t reach agreements so they go to someone, like a judge, to make the decision for them. The cost is significant in terms of time and financial resources.

   As a family law lawyer, there are many clients who I represented in a court process, that come back to the expense of litigation when they need to change something in the original order.

   One client separated in 2001 and obtained a court order resolving custody, access, child support and division or property over a year later. They had 2 children; a boy born in 1988 and a girl born in 1993. In 2007, the matter returned to court as the son was in college living away from home, and the costs had to be sorted out. A court proceeding was needed as the parties could not reach an agreement directly. That took about a year of court time. The client returned to my office again this week, as the daughter is starting college in the fall and the cost sharing needs to be agreed to. It is likely that a further court action will be required to sort that out as well.

   In another situation, parties were married for 10 years and were involved in court litigation for 8 years to reach an agreement on all of their financial issues. Two years later the eldest child began University away from home. Another court proceeding is needed and takes the full four years of the child’s attendance at University to get resolved. They also have a son, who is in Grade 11. Likely another court proceeding will be required in 2 years when he starts university.

   A third situation was in litigation for 5 years, and was back in court on at least four occasions over the next 10 years to address issues, resulting from a payor’s lost job, and a child’s post-secondary school program extending beyond one degree.

   I have represented clients in collaborative proceedings for almost 10 years. Interestingly, not one has come to see me to deal with a change. They somehow manage to do it themselves. They recognize that they need to work together in the future, and invest in creating a working relationship through the use of the collaborative process, to help them solve disputes as they arise. More importantly they don’t see the solution from a win or lose perspective. They are able to work on solutions that address everyone’s interests, particularly the interests of their children.

   From my perspective, considering the anecdotal evidence, there are strong reasons why parties should choose a collaborative approach to resolving their separation. It is time and money well invested in their future.

   Christine A. Torry
   Willis & Torry, Barristers & Solicitors
   35 Queen Street South
   Mississauga, ON L5M 1K2
   Tel: 905-819-2970
   Fax: 905-819-8379

8. Enlightened Parents Choose Collaborative Family Law

   December 19, 2011 1:16 pm Leave a Comment

   by Fareen Jamal

   Parents who would never harm a hair on their child’s head, often don’t realize that the bickering, squabbling and high-conflict that usually accompanies a court proceeding when they seek a divorce, is the psychological equivalent of taking a pail of scalding water and pouring it down their child’s back.

   Research has shown that children of high-level conflict families carry the marks and scars of the conflict.  It is not the separation of the parents, but rather the way the parents interact that creates these problems.

   The nature of family law when encountering the adversarial court system may, in fact, encourage conflict.  Spouses verbally share the details of their most intimate lives, selectively revealed in confidential conversations with their partners whom they trust and with whom they share a close bond.   Court pleadings reflect a party’s own particular view of its position and may reveal irrelevant or prejudicial information.

   Family law litigants feel vulnerable and violated when intimate details of their lives are exposed.  This may be further exacerbated if the individual does not want the separation or termination of the marriage.  The allegations may include personal accounts, drafted by lawyers in language that emphasize intimate facts to bolster the claims of their clients (and sometimes as gratifying private spite or promoting public scandal).  Court documents lend an air of credibility to the accusations, whether or not they possess any credence.

   Courts expose the private lives of family litigants.  Courts demand a significant level of personal detail from family litigants, such as parties’ date of birth, home addresses, credit card numbers, bank account numbers, and children’s access schedules.  The publicity of litigated issues and court decisions may in fact be detrimental to a child’s best interests, and invade a child’s current and future right to privacy.

   Not to mention the potential of identity theft from family court files.  The personally identifying information in family court files provides a treasure trove of information for an identity thief. This information is publicly accessible to any party by attending the records department at any court house.

   No doubt these are some of the reasons why actor/comedian Robin Williams, who separated from his wife of 19 years last New Year’s Eve has chosen to get a Collaborative Divorce.  One of the clauses in the agreement read:

   “We will strive to be honest, cooperative and respectful as we work in this process to achieve the future well being of our families.  We commit ourselves to the collaborative law process and agree to seek a positive way to resolve our differences justly and equitably.”

   The agreement was to be child focused at all times.

   In Collaborative Family Law, both parties (and their specially trained family law lawyers) negotiate the issues arising from their separation in private, outside of the courtroom, with a written agreement not to litigate.  Should the negotiations not work out and the couple decide to litigate, the lawyers must resign from the case.  This motivates everybody to work out a settlement that everybody is satisfied with.  The process often employs neutral professionals, such as a financial advisor/and or child specialist, to offer their expertise.  The emphasis is on full disclosure, looking out for the children’s best interests, and reaching win-win solutions, rather than on competing and trying to “defeat” the other party.

   This is not to say that all family law matters belong in the Collaborative process.  I consider the courtroom much like a hospital’s emergency room ~ some cases do in fact belong there, however most cases are better served by other methods.

   With more than one-third of those who enter into a formal or legal first marriage divorcing before their 30th wedding anniversary (and the probability of divorce somewhat higher for a remarriage) and with an unknown number of unmarried cohabiting litigants also turning to the courts upon the dissolution of their unions, a significant proportion of the population are affected.  Most of these would be better served outside a courtroom.

   I applaud Mr. Williams’ approach, for choosing not to engage in vindictive behaviour, public humiliation, scandal or a bitter court battle.  I applaud his choice of Collaborative Family Law.  His children, although no longer young at 19 and 16 years of age, will no doubt also appreciate the way their parents have chosen to deal with their separation.

   Fareen Jamal

   Bales Beall LLP, 2501-1 Adelaide Street East, Toronto, ON M5C 2V9, (416)203-4538 fjamal@balesbeall.com