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If you care about your public image, Family Court is not for you

May 17th, 2012

One of the things people in court frequently forget is that everything filed and said in court, as well as all of the judge’s decisions, are public record. Anyone can walk into a court in Ontario (except for child protection proceedings or where there is a specific order) and sit and listen to the proceedings or go to the counter, get a court file and read all of its contents. People don’t even have to go to the court to read the judge’s decisions as many of them are posted on the court’s websites or on CanLii. What happens in court is very public and it is out of the control of the parties to a proceeding. People who want to control their image may want to choose to resolve their disputes in mediation, arbitration, or collaborative practice, which are all private (unless one of the parties appeals the result to a court).

There are an abundance of examples where the public nature of the court has come back to haunt people who went to Family Court. One recent example is that of a person who submitted a application in the United States. The people considering that application did an internet search and found a court decision in relation to the applicant. Unfortunately, the judge who heard the matter, and made the decisions, believed that the applicant had deliberately deceived the court and otherwise behaved badly. Those decisions hurt the applicant badly, again. The applicant wanted the court decisions removed from the internet, but court decisions are public documents and the public is entitled to access them.

Another example relates to a contractor who had not been completely honest in reporting his income (much of it cash) to the Canada Revenue Agency. The opposing party’s lawyer, John Schuman, had done an effective investigation of that contractor’s bank accounts and found that the spending did not match the reported income. The contractor made the mistake of denying the obvious and forcing a motion in court on the issue of support. That motion required a detailed calculation of the contractor’s bank accounts and spending be filed with the court. The contractor lost the motion. But worse, the CRA had developed an interest in the contractor’s true income. An agent went to the court, looked at the court file, and used the information in it to go after the contractor for tax evasion. Apparently, it is not uncommon for the CRA to check the contents of court files.

It is important to consider the consequences of going to court. The parties cannot control whether the judge will like them. A bad, publicly available decision, can impugn a parties character for a long time. Courts can also be a very bad place for people whose financial records are not the best as the opposing lawyer, or the judge, may highlight those problems and make the taxman’s job easy. These are good reasons for parties to consider alternative dispute resolution to keep their personal lives and finances private.

The Down Sides of the Court Process

May 9th, 2012

Quite often, I have clients who say to me, “I want my day in court”. While entering the court process is sometimes the only way to try to resolve a family law dispute, it is usually the most financially expensive, the most emotionally draining (particularly if children are involved), and more often than not, takes the longest amount of time to achieve any resolution, either by settlement or once a court order is made. While many clients seem to believe that going to court will solve all of their problems, the reality is that in a great number of cases, clients are disappointed with the process.

Why is court so expensive?

Typically, lawyers initially try to come to an interim agreement for their clients outside of the court process. Often, a great deal of time (and therefore, money), has been spent leading up to the commencement of any court process. Once negotiations break down, as they often do, and a client decides that he or she would like to go to court, the drafting of numerous court documents begins. These documents are the first documents a judge will usually see and must be drafted persuasively and with precision. Throughout the court process, many other documents will be drafted, including conference briefs and sometimes, affidavits for motions. At each step of the litigation, documents must be served on the opposing party or his or her lawyer and filed with the court. In many cases, there are additional fees associated with this. Once the day finally comes when the parties attend at court, they will be paying for their lawyers’ travel time and waiting time. Depending on the court, they may have to wait all day, and in some cases, may not even see a judge. Meanwhile, they will be paying their lawyers’ hourly rates during this wait time, as it is difficult for a lawyer to do any other work for another client when they are at court.

Why is court emotionally draining?

I have never met a client who has not said to me that he or she is nervous before a court appearance. The anxieties and concerns that come with having a judge offer guidelines or provide a decision that directly affects one’s family, is a terrifying experience for most people. In many cases, my clients have not seen or spoken to their ex-partner for many weeks or even months, and are then forced to come face-to-face in an unfamiliar and usually adversarial environment. This also creates anxiety, anger and, sometimes, fear. In cases where children are involved, the stakes are even higher and therefore, emotions are heightened. The sense of losing control to a third party judge can easily affect a person’s ability to cope well in this process.

Why does it take so long to reach a resolution in the court process?

There are hundreds of governing rules that apply once a client decides to enter into the court process. These rules consist of specific timelines and procedures for filing documents and attending at court. Before a party can be heard by a judge, these procedures and timelines must be met. In addition, there is a significant backlog in many Ontario courts, thus taking several months before a date can be scheduled. As there are many steps that must be followed before a trial, every step of the process typically requires a period of three to six months before the next step can occur, making it years, usually, before a trial occurs.

As I indicated previously, in many situations, it is necessary to go to court. However, for those clients who simply want to “have their day in court”, they may want to re-think their beliefs (or, in an ideal world, go observe a day in family court to see what actually happens!), as they will likely face a great deal of financial and emotional stress along the way that may not be worth it to them.

Exchanging Financial Disclosure Is Necessary for ANY Domestic Contract

January 23rd, 2012

There are many types of domestic contracts – marriage contracts, cohabitation agreements and separation agreements are the most common types. For all types of domestic contracts, the basic requirements of contract law are necessary: the agreement must be in writing, signed by both parties and witnessed.

Even when these basic contractual requirements are met, however, your domestic contract may not be enforceable in a court of law unless these additional rules have been followed:

1. Both parties fully understand the agreement and the consequences of signing the agreement. In order to properly understand the agreement, both parties must have received independent legal advice regarding the terms of the contract;

2. Full, complete and accurate financial disclosure has been exchanged between the parties; and,

3. The agreement itself or the circumstances arising from the agreement must not be unconscionable (meaning, the agreement is so unfair, it would “shock the conscience of the court”).

Any good family lawyer will tell you from the beginning that collecting and producing your financial disclosure to your spouse is not so much an option as it is a necessity. There is, frankly, little point in spending the time and money to negotiate, draft and execute a domestic contract that will hold little weight, if any, if one party in the future decides to challenge a term or terms of the agreement. It makes more sense, from an economic, as well as from an emotional standpoint, to spend the extra time and money to arrive at an air-tight agreement that you can lean on as you begin a fresh chapter in your life.

Can I afford to divorce in tough economic times?

January 19th, 2012

Tough economic circumstances can make continuing a marriage intolerable. However, some spouses feel that they cannot leave a terrible marriage because it will just cost too much to get divorced. There is no question that waging a nasty war in divorce court will be very expensive. In addition, family court judges must apply the law when deciding cases, which means they cannot devise creative solutions to difficult family economic situations. However, that does not mean separation is not an option for unhappy spouses. It just means that court is not the right choice for resolving family law issues.

Family mediation and collaborative practice are two options for separating couples that have large advantages in tough economic times. Both can allow separated couples to resolve the matters between them for a fraction of the cost of fighting things out in court. An even bigger advantage of family mediation and collaborative practice is that it allows for the parties, with the help of their lawyers, to be much more creative in resolving financial matters. The separating spouses can create a resolution that is fair to both spouses and also reflects the reality of their difficult financial circumstances. Any financial settlement through mediation or collaborative practice must benefit minor children as much or more than a strict application of the Child Support Guidelines. However, aside from that requirement, there are a few other limitations on what terms are possible in a family law settlement. The parties do not have to strictly apply Family Law, in the way that a judge must, in collaborative practice or mediation. However, it is still useful each of them to have a lawyer so that they know that the settlements they are considering is fair and benefits them as much as, although differently than, what a judge would order. (Each party must have independent legal advice for any settlement to be enforced by the court.)

Mediation and collaborative practice allow the parties to tailor a resolution that meets both of their needs. That can include addressing tough financial circumstances. The settlement can put off having some money change hands until times are better. Those settlements can also involve having debts or assets change hands in a way that the court cannot order, even though it makes more financial sense for the parties. There can be many other creative ways to address each spouse’s needs depending on their particular circumstances.

Avoiding the cost of a nasty court battle leaves more money available for the children, to say nothing of avoiding the emotional cost of a war between parents. However, both parties must choose to use either collaborative practice or mediation. One spouse cannot require the other spouse to use one of those options. If one spouse is going to be uncooperative, then court may be the only possibility. However, if both spouses are going to be sensible, then they can get divorced, including resolving all of the issues between them, for a minimum cost and create a new financial reality for the family that makes the most money possible available for everyone.

New Changes to the Federal Child Support Guidelines

January 6th, 2012

Effective December 31, 2011, the Federal Child Support Guideline Tables have changed. In many cases, the child support payments will increase. In others, the payments will decrease. How this affects you and the child support you pay or receive still depends on the province in which the support payor lives, the number of children, and the payor’s income.

The fact that the child support Tables have changed will have a corresponding effect on spousal support under the Spousal Support Advisory Guidelines when using the “With Child Support” and “Custodial Payor” calculations.

You may visit http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp to run a quick calculation to determine how the new child support Tables will affect the child support that is currently being paid. However, in many cases, including those that involve a self-employed payor, it may be beneficial to discuss the payor’s income on the amount of child support payable. The self-employed payor’s Line 150 income, as displayed on his or her income tax return, may not be appropriate to determine the amount of child support payable based on the Tables. One of our family lawyers will be able to assist you with this issue and with the Spousal Support Advisory Guidelines calculations.

Spousal Support Entitlement

December 14th, 2011

In this video blog Julie Tyas discusses Spousal Support Entitlement.

http://www.youtube.com/watch?v=brJzgTth5hE

Is there a reason why I should stay in our home?

December 9th, 2011

Many people have heard that if they separate from their spouse they should try to stay in the matrimonial home. There are a lot of rumours as to why that is important. In reality, there are only two reasons for staying in the matrimonial home after separation. If those two reasons do not apply to your circumstances, there is no reason to stay. The two reasons for staying in the matrimonial home are 1) To remain a custodial parent of any children; and 2) For financial reasons if both parties are entitled to stay in the home.

The most important reason why a spouse should stay in the matrimonial home after separation relates to the children. Ontario Law says that if one spouse walks out leaving the children behind with the other spouse, the spouse with the children has de facto custody of the children. The “staying spouse” has the right to make all of the decisions of a custodial parent. If a spouse wants to be remain actively involved in making decisions for the children, that spouse must either stay in the matrimonial home, get the other spouse to agree in writing to joint custody, or get a court order that permits the leaving spouse to continue to make decisions for the children. The idea behind is that the parent who is caring for the children on a daily basis is probably the parent who is best suited to make the big decisions for the children. Once there is a regime that is firmly in place allowing one parent to “have custody” and make all the decisions, that situation can be very hard to change in court. Staying in the house also has the advantage of not requiring the parties to agree on parenting or access schedule. If both parents are still living to together in the same house with the children then it is easy to maintain an equal sharing of the children’s time. That equal sharing can be continued into a parenting plan when the parties do finally move into separate residences.

The second reason for staying in a matrimonial home is that both parties are legally entitled to stay in that home until there is an agreement or court order to the contrary. Neither married spouse could kick the other out of the matrimonial home – only the court can do that. A separated married spouse may find that it is too expensive to rent or buy a new home by him or herself. It can be far more cost effective for the separated spouses to continue to share the cost associated with living in the matrimonial home and both spouses continuing to live there.
Ontario Law does not give common-law spouses the right to stay in a family home after separation. The person who owns the home, or whose name is on the lease, gets to say who lives there, subject to landlord – tenant legislation if it applies.
There are no other reasons for staying in the matrimonial home with a spouse after separation. Leaving the matrimonial home does not mean that the leaving party has their name taken off title if the parties were joint tenants, or that the leaving spouse is giving up the right to ask to share the value of the equity in that home. Who leaves does not affect the amount or duration of spousal support. However, courts may not view that there is a need for support payments while the parties are living together in the same house and one or both of them are meeting their spouse and children’s needs. It is almost always cheaper to maintain one household instead of two, so that can be a practical reason for remaining in the home.

Another practical reason for remaining in the home with the kids is that the staying parent has control over where the children go and when. The staying parent can stand in the way of the leaving parent seeing the children. However, that is not behavioural that the law condones, in exceptional circumstances, nor that a judge will tolerate. The leaving parent will only be cut off from the children until the parties can get into court, or the staying parent follows the advice of a family lawyer.

Maintaining involvement with the children and needing a place to live are the reasons for staying in the home after separation. If neither of these is a consideration, then there is no reason to stay in the home.

Can I lose my family home or cottage to my spouse?

December 9th, 2011

When a family home or cottage is been in a family for generations, the spouse who is inheriting the property may be worried that the property will be lost to a spouse in divorce. If the spouses used that traditional family home together as a matrimonial home, a court can order that the “non-inheriting spouse” can stay in that home until the parties divorce, which may take several years. The court cannot order that the “non-inheriting spouse” gets legal title to the property. However, the family property regime in Ontario can force a spouse who has had a home in the family for generations to transfer it to the other spouse out of financial necessity.

The difficulty surrounding traditional family homes is mostly caused by the requirements in Ontario’s Family Law Act that any matrimonial home be included at full value in a spouse’s net family property. A matrimonial home can be any home that the spouses used or occupied together during the marriage. There can be more than one matrimonial home. Both a home and a cottage can be a matrimonial home at the same time. If one spouse inherits the traditional family home prior to separation, the value of that property on the date of separation is shared between the spouses. If the other spouse has significant assets, the value of which must also be shared, then this may not have much impact on the traditional family home. However, if the “non-inheriting spouse” does not have many assets, then the equalization of the party’s net family properties can require in the inheriting spouse making a very large payment to the other spouse. That payment may be half the value of the inherited property. Inheriting spouses may have no option but to either sell the traditional family home or transfer it to the other spouse to satisfy this obligation.

The breakdown of a marriage after only a short time can result in circumstances that are quite unfair. If a spouse inherits the traditional family home prior to the marriage, the whole value of that property may be shared on marriage breakdown. A spouse does not get credit for bringing a property into the marriage if that property was a matrimonial home on separation. Even after a very short marriage, the entire value of that matrimonial home must be shared, which may result in a situation where the inheriting spouse has to either sell the property or transfer it to the other spouse.

There are two ways to prevent the above circumstances that can result in the loss of a traditional family home. The first is for the spouse not to inherit a property prior to a separation. If a spouse does not own a property, it is not included in that spouse’s net family property and so the value is not shared. The second, and perhaps more practical option, is for the parties to sign a marriage contract that excludes the traditional family home from the calculation of net family property. A marriage contract cannot require that the non-inheriting spouse leave the traditional family home on marriage breakdown or prevent a court from allowing the non-inheriting spouse to stay in the property until the divorce is finalized. However, the marriage contract can ensure that at the end of the whole process, a traditional family home can still be owned by a member of the family.

Access/parenting schedule for infants and toddlers?

December 9th, 2011

Separated parents frequently feel that they do not get to spend enough time with the children. Those feelings can be amplified when the children are very young. Many parents want to make sure that their children bond with them at a young age. A parent who wants to be actively involved in a child’s life usually wants to be actively involved from when the child is a young age. However, the child’s needs at the early stages of development can limit how much time the non-residential parent spends with the child.

There is good research about how much time a non-residential parent should spend with a child. Especially at a young age, a parenting schedule has to be designed around the needs of the child rather than the needs of the parent. Very young children need their routine, a single bed to sleep in, naps during the day, and possibly to breast feed. All of that can limit the amount of time that the non-residential parent can spend with the child. Fortunately, to develop a bond with a parent a child does not need to spend a lot of time with that parent, but does need to see them frequently.

Research shows that children benefit enormously from a close loving relationship with both of their parents. To develop that close loving relationship with a non-residential parent at a young age, frequency of contact is important. For a child who is only months or a couple of days old, a couple of days is a very long time. For an infant or toddler to build or maintain a relationship with a non-residential parent, the child must see that parent frequently: Every couple of days. However, especially for infants, it is not helpful for the child to be away from the primary parents for long periods of time, and definitely not overnight, as that can lead to a level of stress that not only induce the development of a relationship, but development in general.

It is also important that the non-residential parent spend time with the child if the child is scheduled and not the other way round. Routine is very important to young children. They also need their nap and to feed in their usual way at their usual time. This can make long visits impossible.

Fortunately, frequent short visits are what a young child needs to develop a close relationship with a parent. If a very young child has those frequent short visits, there will be a strong parent – child relationship that should evolve to include overnights after the child turns three years old and may further evolve into an equal sharing of time between parents during the child’s school age years.

Children’s relationship with their parents can be badly damaged, even destroyed, along with that child’s development and potential, by exposure to conflict. Frequent contact with both parents can seriously harm a child if that contact results in exposure to conflicts. Children’s experiences with this, especially when they are very young, affects both their brain development and how well they will interact with other people for the rest of their lives. Children who have positive experiences as their brain develops build neural pathways designed for learning (which increases intelligence) and interacting with others in a positive way. Children who are exposed to conflict structure their synapses to avoid and deal with dangerous environments. Their brain does not develop in a way that facilitates other types of learning (thereby limiting intelligence) or forming relationships with other people that are not characterized by conflict. Parents who are in constant conflict with each other must create a parenting plan that does not expose their children to conflict.

Good family lawyers and mediators know about child development and what a child needs from each parent. They can help create a parenting plan that, to the extent possible gives each child the benefits of a good relationship with each parent.

How is property divided after a marriage in Ontario?

December 1st, 2011

In Ontario, married couples share in the wealth accumulated during the marriage. Common-law couples usually do not. This does not mean that married couples own all their assets jointly or have any other form of interest in each other’s property. Married spouses are entitled to a payment that “equalizes” the growth in the spouses wealth during the marriage.

At the end of a marriage, married spouses in Ontario are entitled to a payment that makes each spouse’s growth in net worth during the marriage the same. There are some exceptions which will be briefly discussed below. This is a right to receive a payment, similar to the right to receive a payment under a contract. This right does not give either spouse any form of ownership interest in the other’s property. At its simplest, the parties add up the value of all their assets on the date of separation, and deduct the value of all of their debts. From that figure, each spouse also deducts his or her net worth on the date of marriage (net worth being total assets minus totals debts and other liabilities.) That calculation results is a number called a spouse’s “net family property.” The spouse with the larger net family property has to make a payment to the other spouse to makes the two net family properties equal.

There are some important adjustments to the calculation of each spouse’s net family property. First, gifts and inheritances from third parties during the marriage are not included in a spouse’s net family property unless a gift or inheritance has been co-mingled with the other spouse. Second, spouses can exclude the value of specific assets from the net family property calculation by using a marriage contract. Third, the whole value of all matrimonial homes owned on the date of separation are included in the spouse’s net family property. A spouse does not get to deduct the value of a matrimonial home owned on the date of marriage if that property is still a matrimonial home on the date of separation. Fourth, the payment of a personal injury claim for pain and suffering is not included in the net family property calculation. However, the portion of a payment for personal injury relating to loss of future income may be included in net family property. Also, while spouses share any increases in their net worth during the marriage, they do not share in any decline in net worth during the marriage.
Judges cannot order that property change hands to equalize the spouse’s net family property. They can only order a payment of money. Such an order for payment is enforced in the same way as any other order for payment of money and can be significantly affected by a bankruptcy by one or both spouses. Spouses can agree to transfer property to each other in fulfillment of family law claims. That can be a significant incentive to settle matters outside of court.

The property claims arising from the breakdown of a marriage can be worth a lot of money. There are nuances to the law that can affect the size of the payment that is made. Family lawyers can ensure that a spouse’s rights are protected. If the spouses are resolving financial issues at mediation, it is important that they choose a mediator who understands the law well in order to obtain a fair result.

Spousal Support… How Much Will I Get?

November 15th, 2011

Once you are able to prove you are entitled to receive spousal support (or, if you are the payor, once you have been advised that you will have to pay some spousal support to your spouse), the next question is, how much and for how long? There are no legislated guidelines for spousal support similar to the federal Child Support Guidelines for child support. The closest tool we have, which most judges are relying on, is the Spousal Support Advisory Guidelines, or the SSAGs, as commonly referred to. The SSAGs are extremely complex and it is advised that you speak with a family lawyer about your spousal support rights and obligations while using this tool.

The SSAGs take into account the parties’ ages at the time of separation, the length of cohabitation, the parties’ incomes, and how much child support is being paid, among other more complicated factors. Once this information has been plugged into the SSAG software program, a range of spousal support, both for the quantum and the duration, will be calculated. The range, based on quantum, will be set out using a low-end point, a mid-point and a high-end point on a scale. The mid-point is usually a good starting place to determine how much spousal support should be paid, although there are many factors to consider when determining a fair amount, both to the payor and to the recipient, while taking into account both parties’ standards of living and needs. For example, in cases where the recipient is disabled, spousal support based on the high end of the scale may be appropriate. Conversely, in situations where the cohabitation period was only two years, spousal support based on the low end of the scale may be appropriate. The range, based on duration, will be set out using an end date range that corresponds with the amount of time the parties cohabited together. In some cases where the parties have had a long-term relationship and one party earns a great deal less than the other, the duration may be calculated as “indefinite” using the SSAG program. This suggests that a time-limited period of spousal support may not be appropriate given the facts of the situation.

Spousal Support… Will I Get It?

November 15th, 2011

Spousal support is one of the more complex issues in family law. A spouse, whether married or common-law, does not automatically receive spousal support from the other spouse. In order to receive spousal support, one must prove that they are entitled to receive it. Proving entitlement under section 33(9) of the Family Law Act involves considering all of the following:

Both parties’ current assets and means;
The assets and means that both parties are likely to have in the future;
The dependant’s capacity to contribute to his or her own support;
The payor’s capacity to provide support;
Both parties’ age and physical and mental health;
The dependant’s needs (while considering the standard of living the dependant had while the parties resided together);
The measures available for the dependant to be able to provide for his or her own support and the length of time and cost involved to take those measures;
Any legal obligation of one of the parties to provide support for another person;
The desirability of one of the parties to remain at home to care for a child;
A contribution by the dependant to the payor’s career potential;
If the parties are spouses, the court will also consider:
1. the length of the cohabitation;
2. the effect on the spouse’s earning capacity due to the responsibilities assumed during the cohabitation;
3. whether the spouse has undertaken the care of a child who is older than 18 but has an illness, disability or other cause withdraw from parental control;
4. whether the spouse has undertaken to assist with the education for a child older than 18 or who is unable to withdraw from parental control;
5. any housekeeping, child care or other domestic service performed by the spouse for the family;
6. the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and,
Any other legal right of the dependant to support, other than out of public money.

The conduct of the parties is only relevant if one party’s conduct is “so unconscionable as to constitute an obvious and gross repudiation of the relationship”. Therefore, the fact that one spouse may have had an affair or the parties signed an agreement opting out of spousal support when it would be grossly unfair in the circumstances, may not enough to extinguish the obligation of one spouse to pay support to the other if that person is a dependant and entitled to receive spousal support. It may, however, affect the quantum.

Access Assessments Help Courts Decide Who Should Parent the Kids

November 6th, 2011

Judges sometimes feel that they do not have the proper training to determine what is in a child’s best interests, because a judge’s training is in the law and not in child welfare. In difficult cases, they may want to have a child-focused mental health professional provide advice as to what the custody/access or parenting plan should look like. Often, parents agree that the court needs help from a professional to determine who should parent the children. However, a judge who feels that there are clinic issues that are outside the scope of the judge’s legal training can order such an assessment to investigate those issues.
Custody/access assessors are social workers, psychologists or psychiatrists who are familiar with how to conduct custody/access assessments and regularly do that type of work. They meet with the lawyers, and then with the parties, usually several times, sometimes together and sometimes apart. The custody/access assessor usually meets with the children as well. Often the assessor will speak to other professionals and other people who are important in the children’s lives.
One or both of the parties pay for the custody/access assessments. It is rare for such assessments to costs less than $10,000.00. If the parents cannot afford that amount, the court can ask the Office of the Children’s Lawyer to become involved in the case. That publically funded agency can decide whether to accept the referral and what type of assistance it will provide. It may decide to provide a “clinical investigation”, which is a similar to a custody/access assessment. If the Office of the Children’s Lawyer refuses to assist, then a judge can still order a custody/access assessment even if it will cause financial hardship for the parents.
At the end of this process, the assessor forms an opinion as to which parent should make which decisions regarding the children and what time the children should spend with each parent. The assessor then communicates his or her opinion to the parties. If the parents do not agree with that opinion, the custody/access assessor’s role is limited to being a witness at trial. The Trial Judge can accept or reject the assessor’s opinion. However, the opinion of a custody/access assessor is usually very persuasive to a judge.

Joint, Sole, Shared, Split…Custody in a Nutshell

November 4th, 2011

For most people, the term “custody” brings about thoughts of who will see the children when and how much time each parent will see the children after a separation. In legal terms, “custody” has very little, if anything, to do with scheduling each parent’s time with the children. Custody, in the legal sense, refers to who makes the important decisions regarding the children.

I am often asked, “What are the important decisions?” The major decisions include decisions related to the children’s health, education, religion and extra-curricular activities. The day-to-day decisions involving the children, such as what they will wear and eat, are typically made by the parent who is caring for the children on that particular day. The major decisions, however, are made by the parent or parents with custody.

Until a court order or a written agreement is made to the contrary, there is a presumption in law that both parents have custody of the children. Both parents are presumed to start off on an equal footing once they separate (whether that is the reality or not is an entirely different issue!). Joint custody means that the parents are able to co-parent together to make major decisions about the children mutually.

Sole custody, on the other hand, involves only one parent making the important decisions about the children. In most cases, a court order or written agreement is necessary for one parent to have sole custody. In some cases, one parent may have what is called “de facto” custody, which means he or she may temporarily make the important decisions regarding the children solely, as a result of the other parent leaving the family or matrimonial home. One should not assume, however, that as a result of the other parent leaving, he or she has sole custody.

Shared and split custody scenarios, although using the word “custody”, really have less to do with the decision making for the children and more to do with the time each parent has with the children and the effect on child support. Shared custody, which is defined under section 9 of the Child Support Guidelines, is a situation when the children spend at least 40% of the time with each parent. Split custody, as defined under section 8 of the Child Support Guidelines, involves a situation when each parent or spouse has custody of one or more children (i.e. the children are split up between each parent). There are special rules that apply to these types of situations in terms of paying child support.

Determining custody is often much more complex than what I have outlined here. If you have recently separated and have children with your spouse, sorting out custody will likely be your main priority. For assistance with this, please consult with one of our family lawyers and we will be happy to help you determine what is best for your children and your family.

I keep hearing about Mediation…is this for me?

November 1st, 2011

Mediation is a process whereby the parties meet with a neutral third party mediator to try to resolve the issues between them that they are unable to resolve on their own. The mediator is not allowed to make a decision regarding the issues in dispute. Rather, the mediator’s role is to assist in facilitating an agreement that the parties come up with themselves. If the parties reach an agreement at mediation, the agreement will become part of a Memorandum of Understanding and later, will form part of a Separation Agreement. While the terms of a Separation Agreement are binding, if no agreement is reached in the mediation process, in most cases, neither party can use whatever was said during the process against the other in a different process, such as court.

Whether or not your family law matter can proceed by way of mediation depends on a couple of things:

Firstly, it depends on whether your spouse is agreeable to proceeding through the mediation process. If both parties are not entering into the mediation process voluntarily, the process will likely fail.

Secondly, if there is any form of domestic violence or a power imbalance that would lead one party to intimidate or compel the other into making an agreement they may not otherwise want to make, the mediation process cannot move forward. The mediator will be trained to screen for these power imbalances.

People going through a difficult separation are often drawn to a process, such as mediation, which allows them to be in control of the decisions that are directly affecting their family, as opposed to having a judge impose a decision on them (typically after waiting for months, or years, for this to happen). You may choose to have your lawyer very involved or less involved in the mediation, depending on the complexity of your case. Even if your lawyer is involved in all aspects of mediation, mediation is almost always a cheaper and quicker alternative to court. This may be the route for you. Please give our family law team a call to discuss this and other alternative dispute resolution options available.

What about my son’s hockey fees and my daughter’s daycare expenses?

October 21st, 2011

If you are the payor of child support, you may also have to contribute to your child’s hockey fees and daycare expenses on top of making your monthly child support payment. These expenses may fall into the category of “special or extraordinary expenses”, which is defined in Section 7 of the Child Support Guidelines. Another name for “special or extraordinary expenses” is “section 7 expenses” or “add ons”. If an expense is determined to be a “special or extraordinary expense” under section 7 of the Child Support Guidelines, the cost is generally shared between the parents, proportionate to income, after the appropriate tax deductions are subtracted.

Pursuant to section 7 of the Child Support Guidelines, a court may apportion the net cost of certain “special or extraordinary expenses”, so long as they are reasonable and necessary, having regard to the best interests of the child. The list of what may constitute a “special and extraordinary expense” is exhaustive. It includes items such as child care expenses that are incurred as a result of the custodial parent’s employment, disability, illness or educational training, medical, dental and some other health-related expenses, extraordinary educational expenses, post-secondary educational expenses, and extraordinary expenses for extra-curricular activities.

Although the law is not entirely clear on whether the expenses listed in the paragraph above are “extraordinary”, the trend is to consider the family’s expenses in relation to income. Generally, a child will have some small fees for extraordinary activities, and these would not require additional child support.

In order to determine whether you should be paying or receiving additional child support for your child’s special or extraordinary expenses, please contact one of the lawyers in our Family Law Department.

How Long for an Ontario Divorce?

October 12th, 2011

See Julie Tyas describe the length of the divorce process in Ontario. www.youtube.com

What is the “table” I keep hearing about in relation to child support?

September 26th, 2011

The “table”, as commonly referred to, means the Federal Child Support Guidelines table. This table, which has been in effect since May 1, 1997, is a grid setting out what the payor of child support must pay to the recipient based on his or her income and the number of children. Judges are reluctant to sway from applying the table amount of child support in family law cases, except in extraordinary circumstances, such as cases of undue hardship. Proving that you are unable to pay the table amount of child support based on undue hardship is not as easy as it sounds. That being said, if you are the payor of child support, you should be paying the table amount of support based on your income.
In situations where the payor sees the children for more than 40% of the time (which is called a “shared parenting” arrangement), the payor should not have to pay the full table amount of child support. In these types of arrangements, a “set-off” should apply. In other words, you should calculate the table amount that the payor would pay if he or she had the children less than 40% of the time and subtract what the other parent would theoretically be paying based on his or her income if he or she had the children the majority of the time. The difference is what the payor should be paying.
For more information, please contact one of the family lawyers at DSF and pick up a copy of John Schuman’s book, Guide to the Basics of Ontario Family Law.

But It’s Not My Kid

September 14th, 2011

The following is a hypothetical example taken from the next edition of the DSF Guide to the Basics of Ontario Family Law, due out in January 2012:

Before meeting Molly, Desmond had a “one night stand” with Michelle and fathered a daughter. Desmond pays table child support to Michelle. At the time of the one night stand, Michelle was in a relationship with Jude. She let Jude believe he was the father for several years. Jude was an active parent to the girl and became close to her. The relationship ended when Michelle told Jude he was not the father. Michelle obtained full table child support from Jude because of his close parenting relationship with the child. Michelle then lived with Dr. Robert for a couple of years. Dr. Robert also tried to be a good parent and was actively involved in the girl’s life, but never to the same extent as Jude. He did not hire a lawyer when asked to pay child support. The court ordered Dr. Robert to pay one quarter of the table amount of child support for Dr. Robert’s income.

Know your risks and obligations for child support. Contact one of our family lawyers and get all the information you need.

When Should I Separate?

September 7th, 2011

Well, that depends on whether you fall within the “norm” of separating couples. As recently reported in The Globe and Mail[1] , September and January are the busiest months of the year for family lawyers. The family lawyers at DSF are not excluded from this trend. There are many speculations about why the start of a new school year and the start of a new calendar year lead people to take what is often the first step in separating from their spouse: consulting a family lawyer. Both September and January are months that mark change for many people. Both times of year symbolize the return to work and both symbolize the end of a period usually filled with a great deal (perhaps a great deal too much?!) of vacation time with one’s spouse. Nobody wants to kick off or interrupt their summer vacation or Christmas holidays with a letter to their spouse from their new lawyer. So people wait. They wait until now, when our phones are ringing off the hook.

Perhaps it does have to do with the fact that people often make changes and new resolutions for their futures in September and January. Or, perhaps it has to do with choosing to enjoy “one last summer” or “one last holiday season” with the family before taking active steps to separate. Either way you view it, our family law team is accustomed to and prepared for the shift in new clients that come to us this time of year. So please give us a call; we can handle the September separation movement and are here to help.

[1] http://www.theglobeandmail.com/life/relationships/love/divorce/hello-september-so-long-spouse/article2150593/

Bank Executives with Stock Options Face Difficult Divorces

September 1st, 2011

Some bank executives receive part of their compensation through stock options. They represent a great way to be compensated because the executive can receive pay at a lower tax rate. If the stock goes up in value the benefits are even greater. However, stock options create big problems in divorce proceedings.

Stock options can be both property, and income for support in divorce proceedings. They are property, the value of which must be shared as of the date of separation. Determining the right value for the stock options is difficult, as it depends on when the executive earned the options (not when the company issued them), when the executive can exercise the options, when the executive will exercise the options, the volatility of the stock price, the risk that the executive never exercises the options and the taxes associated with them. Stock options existing on the date of separation will be equalized as property, even though the executive may not be able to exercise them until later. The executive may not be able to make an equalization payment until the he exercises the options.

Bank executives may have to share his stock options twice! To the extent that stock options are pay, they are income when calculating support. The stock options at the time of separation may not show up on the executive’s tax return for several years until they are exercised. At that time, the other spouse may want to use them as income for calculating support, even though she has already received half the value. Using the same stock options for both property and support calculations can result in the other spouse receiving payments worth more than the value of the options. That is not fair. Careful attention is needed to prevent it.

A marriage contract can set out fair terms for the stock options on separation. Without that, both separated spouses need skilled family law lawyers to assist with the complicated issues associated with stock options.

Once I have separated, do I have to go to court?

August 23rd, 2011

There are various paths you can take that do not involve going to court:

1. I recommend retaining a lawyer who practices exclusively in the area of family law. This lawyer will be more proficient with the provincial and federal family laws to negotiate a separation agreement for you in a manner that is both cost and time efficient.

2. Depending on the circumstances of your case, you may also participate in the collaborative law process. Most of the lawyers in the family law department have been trained as collaborative family law lawyers. The collaborative law process involves a written commitment to resolve your family law issues through a series of meetings between lawyers and parties and most importantly, involves a commitment to not go to court.

3. Once you and your partner have each retained separate lawyers and financial disclosure has been exchanged, negotiations regarding support, property, custody, access and other more complicated family law issues can take place.

4. Often negotiations take place through four-way meetings with the parties and their lawyers.

5. If negotiations break down, parties can enter into a mediation/arbitration agreement. This involves signing a contract to participate in mediation with an independent and neutral third party, who is often a senior family law lawyer and proficient in all areas of family law. Mediations can resolve issues in as little as half a day or can be continued over weeks.

6. Should mediation fail, the mediation/arbitration agreement will bind you to then participate in the arbitration process, usually with the mediator who then switches hats and becomes the arbitrator. Arbitrations are conducted the same way a trial is conducted and the award provided by the arbitrator is as binding as an order made by a judge at the conclusion of a trial. The benefit of proceeding by way of mediation/arbitration is that most files are resolved at the mediation stage and those that are not are often resolved much quicker in arbitration than trial.

7. The last way to resolve your family law dispute is through the court system. Before you are entitled to have your case heard at a trial, however, there are a series of steps you must participate in first. These steps include one or more case conferences, settlement conferences and trial management conferences. In addition, motions for temporary orders may be heard throughout the process. Because of the numerous steps involved before a case is heard at a trial, most cases do end up settling before they get to trial.

In summary, there are many alternate dispute resolution mechanisms that are available to you once you separate that do not involve going to court. I encourage you to speak with one of the family law lawyers at Devry Smith Frank to determine which route is best for you and your particular needs.