Tag Archive: litigation

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. Divorce ~ The Importance of Disclosure

   June 3, 2013 12:52 pm Leave a Comment

   

   By Paul K. Steckley

   The Collaborative Process is unique in that fostering a strong working relationship between the separating couple is crucial to a successful resolution. The more traditional forms for resolution (litigation, negotiations, arbitration, and sometimes even mediation) more often than not involve people that dislike, if not detest, each other and can’t work together effectively (else they would have chosen a different resolution process). People that choose the Collaborative Process at least have a desire to attempt to set aside their differences and work towards a common goal, and they specifically choose to do so in a way that is respectful and, hopefully, cordial. The Process requires spouses to work closely together, on a fairly frequent basis, and this requires a relationship that is built on mutual respect.

   The key to creating an atmosphere that will enhance such a relationship is building trust between the spouses: trust that may have become eroded during the separation. One way to build such trust is by ensuring that each party comes to the table with all of their cards laid out in plain sight. If someone suspects that their former partner is holding something back, they naturally become distrustful and are unlikely to actively listen to the needs of the other person, which is a crucial step in the Collaborative Process. If one spouse suspects that the other is hiding assets, for instance, they are more likely to be reluctant to trust that spouse’s claims that the children are of utmost importance to them, for example. Distrust can seep into other areas of discussion and derail the entire Process.

   As such, it is vitally important for the spouses to provide full disclosure of all relevant information during the Process. This information includes full financial disclosure and all other information that is relevant and important to understanding the issues at hand and resolving them. Once their other spouse sees that nothing is being hid, their natural defensive posture softens and then they can then truly embrace all the aspects of the Process. Full disclosure fosters trust which creates a stronger working relationship which leads to a better Process that has a higher chance of being successful.

   In addition, full disclosure can ensure that the final Separation Agreement, in the document that the spouses and their professionals have worked so hard to complete, stands the test of time. Spouses that have trusted each other throughout the process are more likely to stand by their Agreement, because they won’t have in the back of their minds that nagging suspicion that they were hoodwinked in some manner by their former partner that leads them to question the validity of the Agreement. And, if, for whatever reason, one does decide to question the Agreement, it has a greater chance of being found by a Court to be enforceable if full disclosure was made throughout the process. It is truly a wasteful exercise to engage professionals and spend a great deal of time and money to create a Separation Agreement that is ultimately set aside simply because full disclosure wasn’t made during the collaborative Process. Separation is a difficult emotional journey for anyone to undertake, and while the Collaborative Process can soften that journey somewhat, it’s not something that anyone wishes to relive years from now. Full disclosure can make the process work efficiently and effectively now, and also provide comfort and stability for the future.

   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

3. 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

    

4. 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

5. Collaborative Family Law: A Safe Place to Have Difficult Conversations

   May 8, 2012 3:17 pm Leave a Comment

   

    

    

    

    

   by Fareen Jamal

   I read an interesting account of one woman’s experience with her divorce, (in Hann McDonough and Christina Bartha, Putting Children First, University of Toronto Press, 1999) and reproduce it here:

   “The Blaming Hamster”

   During our marriage we were like two hamsters on a wheel. We ran furiously, going nowhere, hating our lives and unable to change.

   I couldn’t change because he wouldn’t. So it was his fault. I was trying and he wasn’t. It could not be my fault, he was to blame.
   
   Eventually, I couldn’t stand it. I jumped off the wheel, left the cage, and took my sons with me. There on the outside I discovered another wheel. Beside it was one for him. We took up residence on our respective wheels. The boys had to dance on the top of the wheels while we continued our war with each other. Although I never returned to the marriage, I lived out a slightly altered version of it. That too was his fault. I could not get on with my life because of him. He would do something, I would latch onto it, using his actions to justify my own.

   It took years of this craziness before I saw what it was doing to us. For years I watched my sons bounce back and forth, trying to please us, and paying such a price. One day, way too late, I admitted that I, as well as their father, was damaging them. I realized I could only change myself. I could not change him. Then, to my horror, I noticed that our sons had spun out of control. While we were fighting, they had slowly become delinquent, and we had not even noticed.

   The hamster caught on the treadmill captures the experience of several parents caught in these conflicts. Both parents feel that they have no choice, that they are forced by the other parent’s behaviour to fight.

   Some parents fight to ward off the pain of grieving. They would rather be mad than sad, and the fighting distracts them from pain. Postponing the grieving however, may increase your problems.

   The only way out is to invest in what you can control: yourself and your behaviour. Focus on what you can change. The only one you can control is yourself.

   The legal system escalates your conflict. The adversarial nature of the system polarizes problems. The win/lose, right/wrong approach may work in criminal issues, but as I blogged on December 19, 2011, this is not appropriate for family matters.

   Stay in charge of the systems you consult, and whose services you employ. They are there to serve you, not to rule you. Always inquire about their philosophy and orientation.

   Collaborative Family Law is a voluntary, safe, confidential process to resolve your matrimonial disputes, with a written agreement not to litigate. Collaborative Family lawyers focus on interests not positions, and may use neutral and impartial professionals, such as a financial advisor and/or a child specialist, to assist. Conflict, tension and emotion are not ignored by Collaborative Family lawyers. It is a safe place to have difficult conversations.

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

   Profession: Family Law Lawyer Tel: 416-203-4538 Fax: 416-203-8592 or 416-203-4539 fjamal@balesbeall.com www.balesbeall.com