Tag Archive: lawyer

1. 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

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. 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

4. Lessons for Collaborative Clients and Practitioners

   February 15, 2012 9:55 am Leave a Comment

   
   by Diane Daly
   In many years of collaborative practice, I’ve had only one really, over the top, bad experience with another collaborative lawyer. A lot of files have been challenging for sure, but only this one stands out as absolutely over the top bad. And the first thing you think as a person who has separated is, “why is she telling me this bad news story?” “Why would I want to consider Collaborative Practice as a means of negotiating a settlement with my spouse?” Because the story illustrates two points:

   First, it was one bad file in about nine years of Collaborative Practice – that’s pretty good, especially when you consider the number of bad files family law lawyers have in litigation – I can’t begin to count them in 22 years of practice, there are so many!

   Second, it illustrates the importance of choosing your collaborative practitioners wisely.

   Here is the “Reader’s Digest” version of my story. I and another “collaborative” lawyer (I’ll call her Jane) set up and attended two or three four-way meetings with our respective clients. We exchanged most financial disclosure and were just getting down to the details of settlement, when Jane tells me (at a Christmas party, no less) that her client has asked mine to meet at Jane’s office and sign a draft separation agreement that Jane had prepared, outside of the collaborative process, based on her client’s instructions.

   The agreement was a horrible deal for my client, who was being pressured by spouse and children, also outside of the collaborative process. I pointed this out to Jane who knew the situation. Well trained collaborative practitioners understand that people don’t always behave well. It’s human nature. People are being asked to put their best foot forward at one of the most difficult and stressful times in their lives. It’s just not realistic to expect perfect behaviour all the time. As collaborative practitioners, we have to deal with that in a non-judgmental way, within the process, and still advocate on our client’s behalf. By virtue of the Participation Agreement that clients sign, and collaborative practitioners confirm, we are bound to withdraw from the process if a client’s behaviour lacks honesty and integrity. In this situation, I pointed out to Jane how inappropriate this was from a collaborative process perspective, not to mention the fact that it was a serious breach of professional conduct to have a vulnerable person sign an agreement at her office, without the benefit of independent legal advice. Well, it happened anyway. I found out that my client had gone to the other lawyer’s office and signed the separation agreement. I called Jane to tell her what I thought of the tactic and her response was that her client wanted her to do it, so she had to.

   It was a terrible outcome – not only because it was so unfair to my client, but more importantly, because my client wasn’t happy with the result. It was just a case of not being able to deal with the stress, and being bombarded with pressure, outside of the collaborative process.

   Jane’s behaviour in that process was inexcusable. But the really good news is that Jane is truly the exception. The vast majority of lawyers, mental health professionals and financial professionals who practice using the collaborative model have a genuine desire to assist their clients in a dignified, respectful, non-adversarial way, and with the very utmost of integrity. Our credo is “Resolving Disputes Respectfully” and we live by that.

   The anecdote begs the question, “how do I choose a collaborative practitioner, be it a lawyer, mental health professional or financial professional?” So here are a few pointers:

   1. Ask about their training. Most Collaborative Practice groups require their members to have a minimum of five days of basic training. But ongoing, continuing education is absolutely critical.

   2. Ask how long they’ve been practicing collaboratively? How many collaborative files have they done in that period? If they’re just starting out, they may only have their basic training and done only a couple of files. And that’s okay. Everyone has to start somewhere and the beauty of the collaborative model is that dedicated collaborative practitioners exchange information. We meet to talk about our cases (on a no name’s basis, of course). We mentor each other. We do not take advantage of the other client’s or lawyer’s mistakes. We strive for agreements that emphasize a “win-win” approach. If your collaborative practitioner has been around for five years and never taken anything but the basic training, and has had only two collaborative files, you might want to have a frank discussion with them regarding their commitment to the process.

   3. Ask whether your practitioner is a member of a local collaborative practice group. Do they attend group meetings? Do they attend any of the collaborative conferences? Do they demonstrate commitment to the process by working to develop and improve the process in their community and with other collaborative professionals?

   4. If it’s a collaborative lawyer you’re looking for, ask them how much litigation they do? Many collaborative lawyers do some litigation, of course, but if most of their files are in court, you should at least discuss with them why and get some feel for their commitment to the collaborative process.

   5. Most importantly, trust your instincts. Whether it’s a collaborative practitioner or a litigator, you need someone who is on the same page philosophically as you are. Your collaborative practitioners are part of your team, and you need to be comfortable dealing with them.

   Diane F. Daly
   Collaborative Lawyer, Mediator & Arbitrator

5. Communication

   November 30, 2011 10:55 am Leave a Comment

   

   How many clients have experienced the frustration of negotiating terms of a Separation Agreement with their spouse in an adversary process that has involved lawyers, and that has seemed to take forever and cost a small fortune? Just when you think you are close to reaching the final “deal” that you can live with, there is a “push back” from your spouse, that makes you feel like exploding. It may not be a major item, in fact, it may not even involve money, but could relate to the return of a “personal item” or the division of furniture, but it is the “straw that breaks the camel’s back”, and you just feel like having your lawyer tell your spouse’s lawyer that the deal is off. Why should you keep giving in? Why does your spouse have to always win? You tell your lawyer to take the case to court.

   How many negotiations break down at this stage, and how many clients are feeling dissatisfied? How many lawyers are also feeling frustrated and dissatisfied?

   The typical lawyer response would be to justify the “fairness” of the deal. I believe we are so ingrained in our defensiveness that we bring strategies used in war to our communication. We become defensive any time we feel the need to protect ourselves. We develop barriers in our communication. We are protecting our egos, our self-image. Many lawyers engage in power struggles with their own clients, to try to convince the client that the proposed settlement is fair, and is in the client’s best interests.

   As a lawyer in this situation I know I have felt frustrated with my client. I would try to convince him/her that the deal is more than fair; it would cost a small fortune to take this matter to court, with no guaranteed result, and I would tell him/her that they need to look at the big picture. In effect, I would be engaging in a power struggle with my client. My client is in a power struggle with their separated spouse, and I am also in a power struggle with the spouse’s lawyer.

   When I was faced with this situation recently I made a conscious effort to try the methods of “Powerful Non-Defensive Communication” taught by Sharon Strand Ellison.

   I first asked the client “what do you mean by fair”? The client was most upset and angry and continued to complain that they were tired of conceding, why did their spouse have to always win, etc. I then said: I hear you saying that your spouse’s proposal to reimburse her for some income tax is not fair to you and you want me to dissolve the negotiations, and take this matter to court. Yet at the same time you have said to me on numerous occasions that you want this over, that you are finding it incredibly stressful, you are having trouble sleeping, and you feel ill at times. You also have told me that the legal costs are killing you. And I know I have told you under the law model the result is not always so crystal clear, and there is a range of likely outcomes in terms of what a court might order, and the amount they are seeking is within that range, then I believe that you are responding right now from emotion because you are upset, and I think you should think about how you want to respond formally before giving me any further instructions.

   My client agreed, and shortly thereafter we reached a final settlement.

   What would the client/lawyer relationship look like if we could remove the power struggle from our relationships? What if we could change the way we communicate and we could all model effective communication techniques for each other? What impact might that have on our negotiations with spouses, and other lawyers?

   I believe it is possible to remove the power struggle from our relationships, even with our teenage children, our spouses, and with other lawyers. We can change the world one word at a time.

   Karen Thompson-Harry, B.A.(Hons), JD.

   Barrister and Solicitor, Mediator, Arbitrator, Collaborative Family Lawyer

   1 Wellington Rd. 124

   Erin Ontario N0B 1T0

   Telephone: (519) 833 0040

   Fax: (519) 833 0041

   Toll Free: 1 866 969 0040

6. Divorce ~ The Collaborative Way

   September 22, 2011 9:20 pm Leave a Comment

   I call collaborative divorce the “holistic approach” to divorce.  Many, when faced with divorce, feel that they must have their interests protected and they want to have a lawyer represent them, to fight for their just half.  Unfortunately, in looking for representation, divorcees often don’t realize that they are taken into the process that that lawyer practices without weighing their options.  There are many different processes of divorce and it is important to understand the costs and benefits to each process.  The costs can be in the form of legal or emotional costs.  Emotional costs can stay with the family long after the negotiations end.  It is important to understand which process the lawyer you visit practices so that you own your own process, rather than being directed into one that doesn’t suit your family.

   Pictures speak a thousand words so I thought you might be interested in this short, complementary clip explaining the difference in the collaborative approach from the perspective of collaborative family law lawyers, divorcees, the children of divorce, financial and family professionals.

   Hope you enjoy it!  https://www.peelcollaborative.com/video.html

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

   Vice President, Financial Divorce Specialist

   T.E. Wealth, 26 Wellington Street East, Toronto, ON M5E 1S2 (416)640-8591

7. Family Law and the Participation Agreement

   September 19, 2011 9:13 am Leave a Comment

   The Participation Agreement

   The participation agreement is a fundamental element of every collaborative process.

   This agreement is signed by both parties and each of their lawyers at the first group meeting. It defines the relationship between all team members and sets out the rules of the game. Although the agreement may vary in different jurisdictions, it always includes the basic tenet of collaborative practice: that neither party will take this matter to court. And if they do, both parties will be required to retain new lawyers.

   Most participation agreements begin by stating the goal of the collaborative process, which is to settle any issues in a  non-adversarial manner in order to minimize, if not eliminate,the negative economic, social and emotional consequences for the parties and their family that would result from litigation or negotiations within an adversarial system. There is often a stated goal that the children of the marriage will not be negatively affected by the ongoing negotiations, and that resolutions will always consider what is in the best interest of the children.

   Participation agreements often include communication guidelines; these clarify and reinforce each participant’s duty to be respectful to all other team members, in both oral and written communications. The agreement sets out the expectation that everyone will be honest and forthright, that any mistakes will be noted and corrected, and that no  one will attempt to take advantage of inconsistencies.

   The collaborative process implies a responsibility and commitment to open and honest cooperation. The participation agreement is intended to educate and reinforce, as well as commit the parties to the collaborative process.

   Joelle Adelson, B.Comm., BCL, LL.B.

   Estate Planning, Collaborative Family Law, Mediation

   4-245 Wyecroft Road

   Oakville, ON L6K 3Y6