Top 5 Terrible Things That Happen in Family Court & How to Avoid Them Happening to You

Losing custody of your child in 10 minutes. 

Losing more than 1/2 your pension in 15 minutes. 

Having $20,000 in costs awarded against you in 20 minutes. 

Having all your pleadings struck, being prohibited from participating further in your own court case and excluded from your own trial in 25 minutes. 

Being jailed for contempt of court in 30 minutes. 

I've seen it all happen in family court!

Listening to stories of family separation, custody and support proceedings dragging on for years might lull you into a false sense of security (or frustration) that each pre-trial court appearance is just marking time, where you’re not at much risk of anything bad happening to you and your family (other than losing the money you might be spending on lawyers) until an actual “trial” happens. The reality is strikingly different. 

The Speed at Which Family Law Orders Issue & Motions Explode

You risk being struck down in court if you don’t understand the scope of the Family Law Rules (at least in Ontario) in empowering judges to act decisively at any stages of proceedings. Family law is dramatically different from other types of litigation (like criminal or civil) for the lightening speed of its court appearances leading to temporary and even final orders, including its barrage of motions that can fly every whichway. 

A simple court appearance as innocuous as a case conference could lead to you losing child custody in 10 minutes. Seriously.

Don't believe me? Check out Rule 17(8)(b.1) of the Ontario Family Law Rules which empowers judges as follows: "At a case conference, settlement conference or trial management conference the judge may, if it is appropriate to do so ... if notice has been served, make a final order or any temporary order ..."

There is no limit to this power. It derives from a relatively recent amendment to the Family Law Rules that seeks to make Case Conferences more productive. It gives huge discretion to the sitting judge, who is may be in possession of very few facts and hears very little argument before making a snap decision. So long as your opponent has given you some sketchy advance written notice, then the sky's the limit (within the family law context) on what can be asked for (though of course you can also use the same strategy). 

Other types of litigious law that regularly go to court tend to be on sets of train tracks heading in only one direction. Some trains will run off the rails before they make it to the final judgment station. Some trains will get stalled on the tracks for extended periods of time. But mostly there is only one way forward. And after final judgment, if there are no appeals, a case is truly over. 

By contrast in family law, cases that are thought long since buried can come back to life with retroactive claims in motions to vary, and cases that are just starting their judicial journey may get hit with motion after cross-motion. 

So what's to be done? 

Here's my review of how to avoid the top five terrible things that happen in family court. 

1. Losing Child Custody in 10 Minutes

I used to think that child custody was only determined at family law trials, where there would be months and maybe even years of preparation, live witnesses would testify, maybe expert reports would be presented, and everyone would have lots of notice of what's at stake. While that is sometimes true for "Final" custody orders, it's often the "Temporary" custody orders that count most, as they're the ones that establish a "status quo." And the status quo can heavily drive what a trial judge will find later to be in the continuing best interests of the child. 

A Temporary order might be made at almost any court appearance. A presiding family judge has a huge amount of power to interfere with your personal family life, including ripping your child away from you. Even for a young child who has spent every day of every year of his or her life with you. I've seen it happen. 

So what's to be done?

You need to constantly be prepared to defend your position on what's in the best interests of the child. In Ontario, section 24 of the Children's Law Reform Act contains a highly useful list of the eight key factors legislators have decided to be core of defining the "best interests of the child," including:

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

You need to be constantly on guard at every court hearing to defend why you should maintain your custody or access in its current state, with reference to the above factors.

You can seek to appeal really bad Temporary custody outcomes, however in Ontario you’ll need to: (1) bring a motion for leave (permission) to appeal to a three judge panel of the Divisional Court; (2) you only have 15 days from the date of the order you object to to serve that motion; (3) you’ll need to seek an interim emergency stay pending appeal from a single judge of the Divisional Court in order to stop the new custody regime being implemented pending your motion for leave to appeal. 

All of this will take time. And money. Far better (and cheaper) to try to stop the change of custody decision in the first place, before it happens, before the Case Conference, Settlement Conference, or Motions judge. 

2. Losing More Than Half Your Pension in 15 Minutes

Pension division calculations, and financial gymnastics in family law in general, remain tricky things. While we might like to hope most judges are great at math, in fact many of them might have gone to law school because their math marks sucked (mine weren't so great for calculus). Plus, summarizing and analysing more complex family law numbers might take expert accountant knowledge. 

It's therefore not surprising that judges can screw up math. And other than for child custody, family law is almost entirely about math.

So even if everyone in a family law courtroom understands the basic principles of how things should be split upon relationship breakdown, that doesn't mean that they'll apply those principles correctly. You might find a judge making a $150,000 math error against you. And then discover it's very difficult to change the judge's mind once convinced that s/he is right and you are wrong (particularly if your ex-spouse is cheering on the fact that s/he is now $150,000 richer). 

So what's to be done?

Employ experts (like accountants, pension specialists and actuaries) to ensure your math is bullet proof. The judge might not believe your math. The judge might not even believe your lawyer's math. But the judge will usually accept that experts got it right. And if the other side still wants to fight about the numbers, they'll usually need to produce their own experts, who might even side with your experts at the end of the day.

3. Having $20,000 in Costs Awarded Against You in 20 Minutes

Some jurisdictions like Quebec make litigants bear their own costs, because it arguably increases access to justice. But Ontario takes the approach that loser pays, and winner gets paid, which Ontario says is its version of access to justice (even though you might find it impossible to collect the costs).

The idea in Ontario is that the risk of costs awards will deter those with crappy cases from attempting to take them to trial, since they will get punished through costs if they lose. The idea is to encourage all sides in a dispute to make reasonable settlement offers to each other, as having a reasonable settlement offer refused may get you enhanced costs, even if you "lost" the case. 

But I've seen some "little" family motions lead to $20,000 (or more) in costs awards against the loser, which are far more punitive that the subject of the motion itself. 

So what's to be done? 

Ensure you are strategic in making a settlement offer prior to any motion by or against you. You need to demonstrate to the court that you're the reasonable one, so that if you unfortunately do lose the motion, you minimize your costs exposure. Very outrageous costs awards can also be appealed to a higher court. 

4. Having all Your Pleadings Struck, being Prohibited from Participating Further in your Own Court Case, and Being Excluded from Your Own Trial in 25 minutes

Think you always have a right to be present at and participate in your own trial? Think again!

While that fanciful notion applies strongly in the criminal law context, in family law if a judge thinks you haven't complied fully with past court orders (as in 100% compliance, not even 99%) s/he can "strike" all your pleadings (meaning your claim or reply), and later even proceed to hold a trial without you being present. And yes, that can lead to horrible outcomes on custody, financial calculations, and costs, because there is only one side there for the argument. 

The striking of pleadings leads to surreal Kafkaesque situations, where a litigant is actually present in court, wanting to participate, but is legally prevented from doing so. The pleadings can’t be refiled, because they’ve been struck. But the litigant is permitted to remain in the courtroom, subject to something of a gag order.

So what’s to be done?

Do everything you possibly can to avoid your pleadings being struck. Meaning, file any replies within the court ordered timelines, produce all documents and information you are required to produce, and bring a timely motion to extend timelines for anything court ordered that you’re finding it impossible to comply with (like for obtaining documents not within your control) BEFORE the next court date when you risk a striking of pleadings. Or at the very lease, make your motion to extend timelines of compliance returnable on the next court date already scheduled for your case. 

If your pleadings do get struck, immediately launch an appeal as that striking will be a Final order against you. You’ll have a short timeframe within which to serve and file your appeal. 

5. Being Jailed for Contempt of Court in 30 Minutes

Contempt of court motions are extremely rare, except - of course - in the family law world! Contempt is a quasi-criminal offence, that requires proof beyond a reasonable doubt. It also usually requires that the person accused of contempt - even if convicted - be given a chance to “purge” his or her contempt prior to sentencing. 

Contempt of court motions have become the cattle prod of family law, where parties constantly zap each other over non-compliance issues. Even where the source of dispute  over compliance might be minor. And there might not in reality even be any non-compliance. 

It’s still fairly rare to go to jail for contempt of court. But it happens. A motions judge hearing a family contempt motion has a lot of discretion. “Fines” tend to be the more common punishment.

But if there have been repeated prior findings of contempt, a judge might without much warning decide to up the ante by imposing custody on a party. Even though there is no “criminal” charge. And you haven’t had the benefit of the months or years of a criminal proceeding process involving disclosure, negotiations, and trial preparation, only after which could there be a conviction and sentencing leading to custody (which rarely happens except for the most serious of offences). 

So what’s to be done? 

Be constantly vigilant to guard and defend against contempt motions. Understand the contempt motions process (preferably with the aid of a lawyer), and use that understanding to restrain the trial judge from making rash findings that could lead to jail.

Stress the “proof beyond a reasonable doubt” standard. Stress that credible, relevant evidence is needed. Stress that there must be proof of an intentional rather than just accidental breach of a court order. Stress that any sentencing hearing should be adjourned for the purging of contempt. Stress that jail is truly a last resort. 

Thinking of every day in court for family law as being like a mini-trial, where anything could happen, and preparing accordingly, will best protect you from the top five terrible things that happen in family court. 

Gordon S. Campbell practices family law throughout Ontario. He especially litigates high conflict cases, and undertakes family appellate work in the Divisional Court & Court of Appeal. 

Le droit de garde et d’accès pour les grands-parents : trois erreurs à ne pas commettre

Le rôle des grands-parents dans la vie des petits-enfants

Les grands-parents peuvent jouer un rôle essentiel dans la vie d’un enfant et soutenir les parents dans l’éducation de ce dernier. Beaucoup de grands-parents offrent de s’occuper de leurs petits-enfants sans rémunération et prennent le temps de faire des activités avec ceux-ci. De plus, les grands-parents peuvent représenter un point de référence culturel pour que les petits-enfants comprennent mieux l’histoire de leur famille. Par ailleurs, certains grands-parents contribuent aux dépenses financières des parents pour offrir de meilleurs opportunités éducatives, religieuses ou sociales aux enfants, ce qui finit par aider l’enfant à s’épanouir.

Les éléments pris en compte pour obtenir la garde ou l’accès aux petits-enfants

Au cours de l’histoire du droit de l’enfance, deux tendances se sont développées : d’un côté, les décisions en faveur de l’autonomie parentale, de l’autre côté, les décisions favorisant l’intégration des grands-parents dans la vie des enfants. En Ontario, depuis 2016, la Loi portant réforme du droit de l’enfance autorise de manière explicite les grands-parents de réclamer la garde et l’accès de leurs petits-enfants.

Lorsque les grands-parents présentent une requête pour avoir des droits de garde ou d’accès à leurs petits-enfants, les tribunaux prennent en considération les facteurs suivants :

  • l’amour, l’affection et les liens affectifs qui existent entre l’enfant et les grands-parents
  • le point de vue et les préférences de l’enfant, dans la mesure où il est raisonnablement possible de les déterminer
  • la durée de la période pendant laquelle l’enfant a vécu dans un foyer stable
  • la capacité et la volonté des grands-parents de donner des conseils à l’enfant, de s’occuper de son éducation, de lui fournir les objets de première nécessité et de satisfaire ses besoins particuliers
  • le projet des grands-parents relatifs aux soins et à l’éducation de l’enfant
  • le caractère permanent et stable de la cellule familiale où l’on propose de placer l’enfant
  • l’aptitude des grands-parents à agir en tant que parent et
  • les éventuels liens familiaux entre l’enfant et les grands-parents

Malgré l’évolution du droit, les tribunaux continuent souvent à privilégier le droit d’accès des parents par rapport à ceux des grands-parents. Cela dit, en plus d’analyser la relation des grands-parents avec l’enfant, les tribunaux regarderont aussi si les parents ont décidé de nier l’accès aux grands-parents de manière arbitraire. Pour que leurs droits d’accès ne soient pas réduits ou supprimés, les grands-parents doivent éviter de commettre les trois erreurs suivantes.

1. Les grands-parents ne doivent pas remplacer le rôle des parents

En aucun cas les grands-parents doivent usurper le rôle du parent. Même si les parents souffrent de difficultés financières, psychologiques ou émotionnelles, le rôle des grands-parents n’est jamais de venir prendre la place des parents pour éduquer et élever les enfants. Bien sûr, les grands-parents sont toujours bienvenus pour assister dans le développement de leurs petits-enfants. Cependant, l’intervention des grands-parents dans la vie des petits-enfants doit être limitée et doit être approuvée par les parents.

Imposer un régime alimentaire ou une religion quelconque à l’enfant ou encore, inscrire un enfant à une activité ou un établissement scolaire spécifique sans consulter les parents sont des exemples de comportement qui seront réprimandés par les tribunaux judiciaires.

2. Les grands-parents ne doivent pas adopter une attitude hostile envers les parents

Bien que la législation ontarienne prévoie que les tribunaux doivent prendre en considération les droits des grands-parents lorsque ceux-ci présentent une demande d’accès aux petits-enfants, le droit d’accès aux petits-enfants n’est jamais automatique. Ainsi, il est important pour les grands-parents de garder une conduite qui est raisonnable envers les deux parents, notamment si les deux parents se séparent.

Parfois, des tensions peuvent se bâtir entre les grands-parents et le parent qui a la garde des petits-enfants, surtout si ce parent n’est pas leur enfant. Lorsque les grands-parents adoptent une attitude hostile envers le parent qui a la garde de l’enfant, ils réduisent leurs chances d’avoir gain de cause en cour. Souvent, les tribunaux préfèreront éviter de mettre de l’huile sur le feu en obligeant le parent en question d’autoriser l’accès de l’enfant aux grands-parents.

3. Les grands-parents ne doivent pas ignorer les petits-enfants

Pour maximiser le temps d’accès avec leurs petits-enfants, les grands-parents doivent s’assurer de bâtir une bonne relation avec l’enfant dès sa naissance. Dans les cas où l’enfant ne connaît presque pas ses grands-parents, un tribunal pourrait décider qu’il n’est pas forcément dans le meilleur intérêt de l’enfant de donner des droits d’accès aux grands-parents.

Il incombe aux grands-parents bâtir une relation positive avec l’enfant et ses parents. Visiter l’enfant de temps à autre est insuffisant pour créer ce type de relation. Les grands-parents doivent créer des liens affectifs réels et participer de manière très active dans la vie de leurs petits-enfants. De façon générale, les tribunaux sont prêts à accorder des droits d’accès aux grands-parents lorsque l’enfant a vécu chez eux ou lorsqu’il a passé une période considérable avec eux peu de temps avant les procédures judiciaires.

Avant de présenter une requête devant les tribunaux, il peut être judicieux de retenir les services d’un avocat pour connaître ses droits et ses obligations par rapport aux petits-enfants.

Karen Kernisant est avocate à Aubry Campbell MacLean et pratique dans les domaines du droit de la famille, du contentieux civil et du droit criminel.

Should I Appeal My Negative Family Trial Court Judgment?

You often won't have a choice about going to Family Court at the trial level. Either you're the Applicant, petitioning the court for something (divorce, spousal support, child support, child custody), or you're the Respondent replying to an application for one of those things by your ex-partner.

Sometimes you'll be happy with the outcome of your family law case at the trial level. But unfortunately you'll often be dissatisfied, either because you didn't get everything you asked for, or because the other side got some or all of what it asked for.

Compared to a trial where you had to show up, you'll always have a choice over whether to appeal a negative family trial court judgment to a higher court (unless you're forced to respond to an appeal by the other party to a case). The questions you should be asking yourself in considering whether to appeal are:

1. how great of an impact will this negative judgment have on me and my family?

2. how long lasting will be that negative impact?

3. am I better off to just wait for a change of circumstances (in my own situation, or the other side's situation), and then reapply to the trial court to vary the negative judgement?

4. what are my prospects of success in an appeal?

5. which court do I appeal to, and what is the procedure?

6. do I need to hire a lawyer to do the appeal for me?

Answers to all of these questions are somewhat intertwined.

HOW GREAT WILL BE THE IMPACT ON MY FAMILY OF THE NEGATIVE JUDGMENT?

In terms of impact, a slightly too high (in your opinion) spousal support award against you would arguably have a much lesser impact than losing custody of your children to the other party.

HOW LONG LASTING WILL BE THE NEGATIVE IMPACT?

The lasting effect of the impact relates to whether this is a final or interlocutory (temporary) family court order, though even temporary orders can become the status quo that is later difficult to change.

SHOULD I JUST WAIT FOR A CHANGE IN CIRCUMSTANCES?

If you think circumstances will improve for you in the future (like you might be in a better psychological and financial position to care for your children), then you might want to just wait out a negative order and reapply to the court in six to twelve months citing change in circumstances.

WHAT ARE MY PROSPECTS OF SUCCESS ON A FAMILY LAW APPEAL?

As for prospects of success, while really only a lawyer can give you something of an accurate assessment of your case on appeal, you could consider for yourself where the "justice" of the matter appears to lie, and try your best to imagine how unjust to the outside objective observer the negative judgment in question would appear. I know it's tough to be objective about such things, so perhaps ask others what they think. No appellate court is going to care about you having to pay $550 per month in child support, when really you think the figure should have been $500. However, lots of courts might have sympathy for you losing complete custody of your children, when you had presented a viable parenting plan, and there are serious doubts about your ex-partner's ability to parent.

One reason you might stand a better chance on appeal than at trial is that you will often get three judges hearing your appeal, rather than the one judge at trial, thus maximizing the prospects of obtaining a reasonable, rational decision from at least two of them (majority rules). However, you should realize that appellate courts generally defer to trial court findings of fact, because it is only the trial courts who hear the live evidence.

Statistically, about 1 in 4 civil appeals succeed to some degree, and 1 in 3 criminal appeals. I couldn't find statistics specific to family appeals, but they probably fall into the 1 in 4 category, which isn't bad odds all things considered. 

WHICH COURT WILL HEAR MY FAMILY LAW APPEAL?

In Ontario, interlocutory family appeals coming from the Superior Court of Justice go to the Divisional Court, NOT the Court of Appeal, and need prior leave to appeal. Final family law order appeals coming from the Superior Court of Justice go to the Court of Appeal, and might need leave depending on what is being appealed. Thus the which court do I appeal to question is very important, as you may have a very short time limitation in which to appeal, and don't want to be stuck in the wrong court after your time to appeal to the right court has expired.

DO I NEED A LAWYER FOR AN APPEAL?

As for whether you need a lawyer, the answer is probably. I'm very sensitive to the fact that unfortunately employing legal counsel throughout family law court proceedings can become prohibitively expense because of all the time (and thus lawyer billable hours) that family trial litigation can consume. By comparison, appeals are usually quicker and possibly less costly to pursue than trial family proceeding. But be aware that an appeal might only result in the matter being sent back to the trial judge for a new decision based on proper legal principles.

Appeals also involve a much more paper-based and technical process than family trials (because appeals are more about the law and trials are more about the facts), thus anyone trying to undertake a family appeal by her or himself needs to be familiar with the Rules of Court, how to conduct legal research, how to prepare a factum of argument and book of authorities, and then how to orally argue the case before the court. In theory, it's possible for a self-represented litigant to conduct a successful appeal, but you're going to have an uphill battle that from a legal argument perspective will be more challenging than the battle you fought before a trial family court.

Gordon S. Campbell practices family law throughout Ontario. He especially undertakes family law appeals at the Divisional Court and the Court of Appeal for Ontario. 

 

How do I Move With My Child After Separation or Divorce? Top 10 Factors that Drive Courts to Grant or Deny Parents Permission to Move with a Child

When courts were more focussed on parental “rights” rather than “best interests of the child,” it seemed they were more reluctant to let one parent move with a child such a distance away that regular access of the other parent would be logistically challenging. But more recently, it appears courts have had a reality check realizing that Canadians are more mobile than ever for work, study and family reasons, and that trapping both parents in one spot - often a spot they aren’t originally even from - until all their children are grown is simply not in the best interests of those children. 

Not surprisingly, the parent who doesn’t want to move often fights such moves by the other parent. Sometimes successfully. There is a significant rate of family court contested hearings on mobility issues because of the dramatic way that each parent will be impacted by a move of one of them away from the geographic spot of their split. 

You can generally break moves with children down into short, medium and long distance. The short moves - under 100 km - are really no brainers. Looking at the caselaw, courts will almost always agree that one parent can move that distance. It will lengthen the duration of access transitions, but not overly frustrate weekly transitions. So fighting a move like that might mostly get you hit with a large costs award.

Medium and longer distance moves are more controversial, but their court results will be factually specific. Courts have often authorized what I would called medium distance moves of 500 km or so, seeming to think that regular access is still possible even though it will be a bit of a hike. Moves across the continent or to a different continent become more challenging still, but courts have even regularly authorized those when deemed to be in children’s best interests. 

The Supreme Court of Canada's Take on Parental Moves with Children

Over 20 years ago, the Supreme Court of Canada in the seminal case of Gordon v. Goertz, [1996] 2 S.C.R. 27 found: "While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.”

As courts are now drifting away from inflexible concepts like “custody” versus “access,” whether a move should be authorized in a truly shared parenting arrangement may be a more challenging question to resolve. But the same principles will apply regardless of the custodial arrangements: it’s all about the best interests of the children. 

It's Mostly About the Facts, Not the Law, So Present Compelling Hard Evidence of Best Interests

Like a lot of family law, whether a move is or is not approved by a court has a lot more to do with the weight of the presented evidence, than with some magical legal authorities. Best interests of the child start with maximum contact with both parents. So if that contact is going to be lessened with one parent - perhaps significantly lessened - there needs to be a significant counter weight of best evidence to show why there will be an overall net gain to best interests with a move that ultimately involves reduced frequency of contact with one parent. Uncertainty on the court's part as to whether or not a move is a good thing will likely result in preserving the status quo, and no move being approved. 

Although most "misconduct" is not supposed to count anymore in family law, that doesn't apply to breaches or agreements or court orders, so if one parent jumps the gun and moves anyway without consent or a court order, it might become a lot more difficult to get court approval after the fact.

How to Best Promote a Move With Your Children

1. Demonstrate there is a tangible change in circumstances since the agreement or order. This is an official precondition to a court considering a motion to change custody, unless you've only got an informal agreement which doesn't really count for court purposes. 

2. Demonstrate that the children will be economically much better off after the move, such as by better parental job prospects or reduced housing costs. Don’t be vague or speculative. Actually get a better job first that is conditional on being able to take the children, as difficult as such a conditional offer might be. Present written evidence of the job. Present written evidence of the type and cost of accommodation. Produce economic statistics from the region to which the move is proposed.

3. Demonstrate that the children will be educationally, physically and mentally better off after the move. Show proof of better schools, perhaps with specialized education programs. Show proof of specialized medical treatment programs. Especially show proof of extended family support in new location, like grandparents, uncles, aunts, cousins. Don’t be vague. Include letters from real people identifying the children in question, and their admissibility to these programs. 

4. Demonstrate that the other parent won't be economically disadvantaged by the move by offering to pay all costs of travel of either children or non-custodial parent for access visits.

5. Demonstrate that the principle of maximum parental contact will still be honoured to the greatest degree possible after the move through describing in detail electronic means and timing of remote access with children, plus generous in-person access which might include all summer holidays, and even every Christmas and March break forever. The courts are receptive to proposals that the parent staying have longer terms of uninterrupted access, even if access won’t be as frequent as prior to the move. Do the math, counting hours and days of access under the current regime, and contrasting that to the numbers under the proposed regime. Produce detailed calendars.  

How to Best Oppose a Move of Your Children

1. Assert there is no real change of circumstances since an agreement or order. The court will sometimes toss an entire motion to move on this basis. While it can be difficult to win on this argument alone, there is not really any downside to attempting to make it. 

2. Demonstrate how well the children are currently doing in their present environment. Be specific. Cite all the things they will be torn away from. Produce documentary proof. Produce contrary proof that those things won't be available in the new proposed home location. Demonstrate the speculativeness of the advantages cited in favour of the move: perhaps no job or housing has been secured yet, and perhaps an overly optimistic economic, educational and lifestyle view of the new location is being presented to the court by the parent seeking the move. 

3. Demonstrate the relative equality between the parents of current access/custody arrangements, and how lopsided that will become if the children move away with one parent. Courts will be more likely to approve a move for one parent already spending much more time with the children than the other parent. 

4. Demonstrate the lack of real ties of the children and either parent to the new proposed location, as compared to the current location. 

5. Demonstrate the great logistical difficulties presented by regular access between the old and new location, including the significant financial cost, tiring nature of travel for young children, time zone differences, that winter driving between locations is hazardous or that driving isn’t even possible because of distance. 

Even though parties might be able to represent themselves on minor changes to access or custody arrangements, like times or locations of pickup or drop off, or what school should be attended, the catastrophic consequences for one parent of winning or losing a geographic move motion means that you should always be considering retaining legal counsel to help you with it.

Such motions don't need to consume untold resources so long as you push them to a hearing date as quickly as possible, without too many preliminary case conference or settlement conference court appearances. Devoting lots of personal efforts to compiling and organizing a strong factual evidentiary record favouring or opposing a move will save you lots of money on a lawyer as a parent, as that will let the lawyer focus on the law part rather than the facts part of the court equation. 

 

Gordon S. Campbell is a Family Law Barrister practicing throughout Ontario. Lean more at www.nofearfamilylaw.com

How Much Does a Divorce Really Cost in Ontario? Top 5 Tips for Saving Yourself Lots of Money on a Family Lawyer

There are essentially two types of divorce in Ontario: the really cheap divorce, and the really expensive divorce. The distinction between the two is less obvious than it initially seems.

If you ask everyone up front what kind of divorce they would like, they’ll invariably tell you the really cheap divorce. But they’ll then proceed to take actions (or inaction) which lead down a path to the really expensive divorce.

Divorce is really cheap - relatively speaking - if you aren’t planning to fight with your spouse over the dissolution of your marriage. You agree on property division. You agree on spousal support (or lack thereof). You agree on child custody and support. You then commit those agreements to paper, file a few documents with the court, and within 12 moths of separation you’re done. Magic. Divorce. And very low legal fees. 

Divorce can become very expensive if you can’t agree on all of those things with your ex, and one or both of you decide to go to court to let a judge decide on what’s fair. The irony is that an experienced family lawyer may have already told you (or your spouse) what the likely outcome of going to court will be, but you (or your spouse) believe you can do better. 

Of course one of the two parties to a divorce may be very reasonable, and still wind up with an expensive divorce because the other spouse isn’t reasonable. So in essence each of you need to pick the cheap divorce route, or you may default to the expensive route. 

Family law is one of the simpler areas of law in that it’s relatively new and has lots of written modern legislation governing it, rather than old dusty laws whose meaning no one can figure out. Family law is mostly just based on fairness (like splitting most property acquired during the marriage 50-50 and perhaps paying spousal support if there are significant income inequities), and best interests of the child.

So what’s the range of “really cheap” to “really expensive?” On the low end, under $5000 for a separation agreement and divorce. You might find it even cheaper than that, but remember that all lawyers have to sell is time, so the less you pay, the less time a lawyer will be spending negotiating and drafting your agreement, and making sure every T is crossed and I is dotted.

On the high end, really expensive means somewhere between $25,000 and $250,000! Crazy, eh? I’m not saying that most court-based divorces get to the quarter million mark. But more do than you might think if there are pre-trial motions, possibly interlocutory appeals, a lengthy trial, and then an appeal of that trial result. 

You can do the math for yourself. Take your lawyer’s hourly rate. Multiply by eight or so to get a daily rate. 

Multiply that number by the likely number of trial days required for a fully contested trial on all issues. Then further add the number of pre-trial case conference and settlement conference half-days that are likely. Then add some days for possible pre-trial motions. And also perhaps add time for an interlocutory (temporary) order appeal. And maybe a final order appeal.

Then take all those court days with lawyer time costs, and multiply by two or three, as prep time for court - all those court forms, affidavits, factums of legal argument, case conference briefs, books of authorities, correspondence to opposing counsel and the court, settlement negotiations with opposing counsel, trial witness and other evidence preparation - will likely take at least twice as long (as sometimes three times as long) as any court days they are linked to. So bet on two to three days of prep for any court day.

There, you’ve now got your $25,000 to $250,000 figure. 

So what are the tips for saving yourself lots of money on a family lawyer?

1. Do Everything Humanly Possible to Keep Your Case Out of Court

While many divorcing spouses are focussed on the "big three" of property split, support, and custody, really it is the "big four" as legal costs to get to the optimal position on the big three is an equally important factor. 

Think you’re getting a bit of the short stick on custody conditions? Or on support? Or on property split? Ask your lawyer to take another shot at negotiations. Might only take another couple of hours of time. If that fails, think long and hard over whether court is worth it. 

Being told you’ll only see your child every second weekend, when you think alternating custody weeks 50-50 is fair, may be worth going to war over in court. But be sure you have the resources for that war. Not getting the used Buick - or perhaps the even newer Mercedes - you think you have the right to? Probably not worth it. 

2. Be Organized and Figure Out Your Bottom Line Before You Meet Your Lawyer

Figure out before you see a lawyer the details of what you believe to be fair on property division, support and custody. Don’t be vague, you need to be very, very specific. And bring lots of documents with you to your first lawyer meeting. Ideally, drop off those documents before the meeting, as that will make the first meeting more efficient. Boxes of documents wouldn’t overdo it. Lawyers are good at quickly scanning through reams of documents, but burn through through lots of time if they have to pull every small fact out of a client. 

Lawyers can quickly run up a bill if you are constantly being asked for new or missing documents. On your part, demand a required document list up front from the lawyer so you can pull everything together in one go. If you do wind up in court, documents will often be far more compelling proof than any oral testimony or sworn affidavit, because documents are independent evidence, often pre-dating the marital split. 

3. Don't Think It's a Good Idea to Initiate Litigation Just to Scare the Other Side

Attempting to bluff your way into a more favourable settlement by starting a family court action, without the resources or resolve to follow through on it, is like pulling out that .357 Magnum Revolver from your belt, with the safety off, just because you intend to waive it around a bit to scare someone. We all know where that leads. Same with going to court as a bluff.

4. If You Do Wind Up in Court, Race to the Finish Line as Fast as You Can

Time truly is money in the legal world. Three days in court costs 1/3 of nine days in court. So do your best to avoid multiple case conferences and lengthy trials. 

Some courts will try to trap you in the "never-ending case conference," in order to avoid you eating up court trial time. Don’t let the court do that to you. 

Push for a single settlement conference. Try to expedite any trial management conference. Try to do as much of the trial as possible on paper rather than through live witnesses unless credibility is a huge issue.

Ultimately it’s the court calling the procedural shots, but experienced lawyers know how to pick the right passage to shoot those court rapids, and not get hung up on the judicial rocks. 

5. Don’t Try to Do any of this Without a Lawyer’s Help 

Yes, I know lawyers are expensive. And I know my emphasis above on the relative simplicity of family law principles might even encourage you to believe that you can figure out the underlying theory. And you absolutely can.

But the problem is that you won’t be able to grasp the strategy and tactics required to get a good result in a timely manner before running through the process a few times. Lawyers often have the benefit of having had hundreds of clients they’ve run through the system. Doing it yourself, you would need to figure out how to get it right the first time. And that's just not possible. 

I’m often consulted on family law appeals to the Ontario’s Divisional Court or Court of Appeal (appeals are one of my “things”), by intelligent hard working people who tried to navigate the family court process themselves, often against a spouse who had a lawyer. The results can only be described as disastrous. Time and time again. The system shouldn’t work this way. I know that. But it does. 

Loss of child custody. Loss of $150,000 in family assets because of miscalculations on net family property. Ordered payments of spousal support when in fact support payments should have flowed the opposite way. I’ve seen all of that. 

I get that often these good people started out with lawyers, and dropped the lawyers for financial reasons, being left to soldier on by themselves. But when they came to me for an appeal, they were faced with much larger legal bills than they might have originally incurred in attempting to keep on their trial lawyers, or in hiring a trial lawyer in the first place. Everyone needs to be aware that the best shot you'll ever have at a fair result is at trial, not on appeal. 

So among your possibilities of getting legal help make sure your consider: (1) apply for legal aid, it never hurts to ask (though if you have a well paying job, you won’t get it); (2) budget for significant legal fees, and carefully assess your ability to borrow for those fees, as running out of money half way can be the worst scenario of all; (3) talk to lawyers who might be able to offer "unbundled" legal services, which sometimes includes acting as a “coach” - it’s a newer concept, and may produce mixed results at best if you’re forced to go to court by yourself armed only with a little bit of advice, but it's better than nothing; (4) carefully evaluate lawyers from the start of your case, so that you make an informed retainer choice, and just don’t grab anyone who might be available. You don’t want to wind up in the position of having paid a lawyer a lot of money to help you, and then have a falling out with that lawyer mid-case causing you to need to switch lawyers, and possibly being stuck in lawyer limbo for weeks or months while you try to find a replacement. 

Viewing each family law choice through the "really cheap divorce" lens is necessary in order to truly understand how much a divorce really costs in Ontario (or elsewhere). 

 

Gordon S. Campbell is a Family Law Barrister practicing throughout Ontario. Lean more at www.nofearfamilylaw.com

 

Thinking of Going to Family Court to Break Your Separation Negotiation Deadlock? Family Law Confidential Episode #5: What Pulling the Trigger on Litigation Really Means

You may have been embroiled in friendly or more likely not so friendly family separation settlement negotiations for weeks, months, or even years. You might be getting frustrated that no matter how much you try, or how much you concede, you still can’t come to an agreement with your former partner. Maybe you’ve agreed on money, but can’t agree on children. Or maybe its the opposite. Whatever the reason, you might be getting itchy to have someone put an end to the endless negotiations. 

I work exclusively as a Family Law Barrister, rather than as a Family Law Solicitor, so going to court for clients is definitely my thing. But I still caution them to fully understand what pulling the trigger on litigation really means prior to doing so. I tell my clients there are really only two kinds of family law cases: those that go to court, and those that don’t. There’s a dramatic difference between the two. So much difference that all the other factual variations between cases are inconsequential by comparison. 

PULLING THE TRIGGER MEANS GREATLY INCREASED LEGAL COSTS

Family cases not in court are usually relatively inexpensive (seriously), while those in court can get expensive very quickly because of the amount of lawyer time that can be burned through. How much more expensive? Probably by a factor of 5 to 10 times. And that’s just in the early stages working towards a trial, but not to run the actual trial itself if the issues are complex. For very complex cases, with lengthy trials, experts, and possibly appeals, your in-court costs could reach as high as 100 times greater than your out of court settlement costs. 

Yes, you read that correctly, 100 times. I know it’s a shocking figure. And it’s not driven by my being any more expensive than a similarly qualified Family Law Solicitor. It all comes down to time.

An efficiently negotiated and drafted out of court separation agreement might be completed in as little as ten hours of lawyer time, and that total could be spread over several weeks. Whereas with litigation, 10 hours only amount to one of the many days in court that might be necessary, including a little preparation for that day. The 100 times is an extreme worst case figure; most cases will be much less expensive, but you at least need to think about the 5 to 10 times number, and be prepared for escalating costs.

The best way to keep down your family court costs if you do decide to pull the litigation trigger is firstly to see court as a collaborative process with your lawyer, where you carefully organize your supporting documents, and precisely write down the factual chronological and pertinent details justifying what you want out of the process. Secondly, you need to constantly evaluate and reevaluate what winning means.

Litigation hopefully doesn’t mean going all the way to trial. You do need to be prepared emotionally and financially for that possibility, but even a trial that goes well does not ensure total victory; a trial judge might not give you all you want, and an overly favourable trial judgment might be appealed. So you need to look for breaks in the litigation freight train, where you might be able to get what you need without fighting out litigation to the bitter end. 

PULLING THE TRIGGER MEANS YOU RISK PAYING FOR THE OTHER SIDE’S LEGAL COSTS

So long as your case is not in court, you won’t be at risk of being forced to pay the other side’s possibly considerable legal costs. In court, if you lose - which can even mean turning down a reasonable settlement offer, and at trial doing no better than that offer - you could get stuck with huge court costs of the other side, in addition to your own legal fees. 

Regardless of how just you may believe your cause, and how good your supporting evidence, there are no “sure things” in the litigation world. My job is to maximize your chances of an optimal outcome, based on the material I have to work with. Any lawyer who tells you your case is a sure thing is either lying to you, or hasn’t done enough cases. So losing is always possible, and getting hit with legal costs is a possible consequence of losing. In the worst cases, I’ve seen Family Court costs awards exceed $200,000 - truly financially ruinous territory. 

But there are ways to protect yourself from costs, like by making your own pre-trial reasonable settlement offer that if refused, can lead to you getting your own enhanced costs or at least not be hit with costs. 

PULLING THE TRIGGER MEANS YOU’RE NO LONGER IN CONTROL OF THE PROCESS

With cases not in court there are no strict deadlines, so you’ll have time to consider your position. In court, you be on a strict timetable: case conference, settlement conference, trial management conference, trial. That also means you’ll need to be able to continually fund that court process, or there could be a breakdown in the relationship between you and your lawyer. 

The court won’t wait for you to save up money for the next step. The court may give you a pause to see if something can be worked out through negotiation, but it won’t be a huge pause. So be prepared for being on court time once you start your case, as courts don’t want hosts of stalled cases clogging up their system. 

PULLING THE TRIGGER SHOULD BE THE LAST STEP, NOT THE FIRST STEP

So my advice is always that going to court is the last step in a family law case, not the first step. Some think jumping right into court will give them more leverage over the other side. More likely, you’ll lose control of the proceeding as the other side retaliates and may make outrageous claims against you that were never made while the case stayed out of court. 

There’s no question that true deadlock in family settlement negotiations (or a complete refusal to negotiate) requires a court or other external dispute settlement process. Mediation or arbitration could also be worth considering. But any of those options can get expensive, so holding your fire as long as possible will best preserve your resources, and give you time to amass evidence that you can use to win in court.

This post should not discourage you from going to family court. Often, it's the only viable means to permanently settle your financial and child custody issues after the end of a spousal relationship. You just need to be aware of how different things will be in a court environment, rather than outside a court process. 

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Une soirée de plaisir, une vie de responsabilités : les conséquences juridiques de la fraude sexuelle sur l’obligation de payer une pension alimentaire

Travail, école, épicerie, ménage, cuisine et j’en passe : chacun a de quoi se sentir débordé par ses occupations quotidiennes. Il n’est donc pas étonnant que chacun cherche à se détendre pour oublier ses soucis, même si ce n’est que pour une nuit.

Après une longue semaine de travail, Alex[1] s’est rendu à son bar préféré. Arrivé là-bas, il a fait la rencontre de Sara. Après avoir consommé quelques verres, Alex et Sara ont quitté le bar et ont terminé leur soirée dans un endroit plus intime. Alex et Sara ont continué à se fréquenter pendant quelques semaines jusqu’au jour où Sara a annoncé à Alex qu’elle était enceinte. Pourtant Sara avait insisté qu’elle ne souhaitait pas avoir d’enfant et que, de toute façon, elle prenait la pilule contraceptive tous les jours. Alex, n’étant pas prêt à être père, s’est senti désemparé et trahi.

 

Quelles sont les obligations alimentaires des parents?

Le droit à la pension alimentaire est un droit qui appartient à l’enfant. Les circonstances dans lesquelles un enfant naît n’a aucune incidence sur le droit de recevoir des aliments. Dans la mesure où les moyens de contraception s’avèrent inefficaces, ils n’éteignent pas l’obligation du parent de pourvoir à son enfant par voie de pension alimentaire. Cette obligation existe même si un des deux partenaires ment intentionnellement à l’autre relativement à son utilisation de moyens de contraception, le désir d’avoir un enfant ou la possibilité de féconder.

 

Quel est l’impact des obligations alimentaires sur les parents?

L’obligation de payer une pension alimentaire à l’enfant peut être perçu par certains parents comme un fardeau, notamment lorsque l’enfant est le résultat d’une grossesse non désirée. Cela dit, l’impact de la naissance de l’enfant sur le style de vie, la carrière et le revenu du payeur n’ont aucune incidence sur le montant à payer.

Comment calcule-t-on le montant de la pension alimentaire à payer?

Le montant de la pension alimentaire à payer varie en fonction de plusieurs éléments :

-          le nombre d’enfants

-          l’âge de l’enfant

-          le revenu des parents

En plus du montant de base de pension alimentaire, les parents ont l’obligation de contribuer aux dépenses suivantes :

-          les frais de garderie

-          les dépenses médicales et dentaires

-          les frais associés à l’éducation de l’enfant

-          le coût des activités parascolaires

 

L’importance de connaître ses droits et ses devoirs

Le devoir de payer une pension alimentaire juste et équitable En cas de doute, il peut être prudent de consulter un avocat pour connaître ses droits et ses devoirs relativement à l’obligation de payer une pension alimentaire à son enfant. Enfin, pour ceux et celles qui ne sont pas prêt à être parent, choisissez vos loisirs judicieusement.

 

Karen Kernisant est avocate à Aubry Campbell MacLean et pratique dans le domaine du droit de la famille, du droit de l’emploi et du contentieux civil. Pour de plus amples renseignements, prière de consulter le site Web suivant : www.acmlawfirm.ca

 

[1] Tous les noms ont été changés afin de protéger l’identité des parties affectées.  

Family Law Confidential Episode #4: Why You Need to Understand the Difference Between Negotiation, Facilitation, Mediation & Arbitration

Although much of my family law practice involves court work, there are many means short of full blown court proceedings which might help give the parties that little push they need to come to a final settlement of the dissolution of their family relationship. Negotiation, facilitation, mediation and arbitration all have their place on the autobahn of relationship wrap up, though some are used much more commonly than others. Personally, I use negotiation all the time, but rarely use facilitation, mediation or arbitration - though I know other family lawyers who regularly use some of those others with success.

What is Family Law Negotiation?

Regardless of whether you realize it or not, your entire relationship was likely a product of subtle negotiation. Thus it’s hardly surprising that negotiation is the primary tool needed to work out the transitional details when that relationship ends. If you’re keen on wrapping things up as quickly and painlessly as possible, some explicit negotiation - where each party is quite aware a negotiation is happening - is probably in order. 

Negotiation can be either “positional” or “interest based.” A future episode of Family Law Confidential will go over in greater detail the fine mechanics of each of the negotiation-facilitation-mediation-arbitration models. But for now, you need to know that positional means primarily parties staking out respective positions as a single apple (or whatever flavour you prefer) pie, where each will take slices out of the one pie, and perhaps hope to wind up with more than half the pie as a share. Whereas interest-based negotiation involves the parties focussing more on desired outcomes first, rather than the details of how they will get there. 

What is Family Law Facilitation? 

Facilitation involves a third-party, often a lawyer, working collaboratively with the two parties going through family change to come to a mutually acceptable resolution. “Collaborative Divorce” would likely fall within the category of facilitation, where a couple hire a single lawyer who does collaborative practice to facilitate an agreement, but also agree that if the collaboration fails each of them will hire different lawyers to fight it out in court in an adversarial process. For couples capable of reasonable communication, where domestic violence is not an issue, facilitation might be a good option. 

What is Family Law Mediation?

Mediation involves aspects of both negotiation and facilitation, but the dynamics are somewhat more adversarial. Each party usually has a lawyer, in addition to the mediator who works for both parties. Mediation could involve both parties in the same room, or might involve each party in different rooms, with the mediator doing shuttle diplomacy.

Mediation might most justified if the parties can’t even agree on the issues to be negotiated, or where the issues are so numerous and complex that help is needed to narrow down the true source of conflict and prioritize what should be settled. 

What is Family Law Arbitration?

While negotiation, facilitation and mediation are all relatively common in family law, arbitration is not, although arbitration is common enough in the commercial/business dispute world. That’s partly because commercial contracts sometimes contain mandatory arbitration clauses, whereas only families that are the product of cohabitation or marriage contracts might be subject to such a clause. But the parties in a family dissolution could agree to arbitration at any time. 

Arbitration has been around for a long time as supposedly a faster, cheaper, and simpler way to settle disputes. However, since parties using the court system get the court almost for free (they only need to pay their own lawyers and experts), whereas using an arbitrator means you have to pay all the arbitrator's fees yourself, as a result that arbitration might not always be cheaper than going to court. If one party laters decides to attack the arbitration process in court because of an unsatisfactory arbitration result, arbitration could in fact wind up being more expensive than court, even if a court ultimately upholds the arbitral award because the parties freely agreed to be bound by that result. 

So all family dissolutions will involve negotiation (formal or informal), some might involve facilitation, a few could do with mediation (especially if children are involved with potentially complex logistics), but arbitration will probably be quite rare. If all of negotiation, facilitation and mediation fail, you'll usually be stuck with a court-based family law process. 

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Family Law Confidential Episode #3: Top 3 Features of a Great Separation Agreement

Only Under Half of Separations Go to Court

Despite all the apocalyptic family law litigation stories one hears in the media, only slightly under half of all separations involving children lead to court orders governing custody (http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/stat2000/p4.html ), with 47.5 % going to court, and 52.5% not in court. That court figure moves up to the 51.8% level where the splitting couple is married (likely because they'll need court help anyway to grant a divorce), but it's likely couples without children go to court even less than 47.5% of the time (because property is the sole issue). Thus while I can't lay my hands on comprehensive stats applicable to all couple situations (children-no children-married-not married), it appears fair to conclude that the majority of splits are done without court help. 

This no court order form of family separation that applies to the majority of couples means that separation agreement completion may be the most important legal task of family dissolution. But what makes for a great separation agreement that will stand the test of time? And could you be better off just letting a court sort things out?

Family Law Costs are Mostly Driven by Court Action

It might be an overstatement to call those non-court separations "amicable" - though probably some of them are - but ultimately what will drive your family lawyer costs the most is whether or not you wind up in court. Really what you want is a carefully drafted separation agreement, overseen by an experienced family lawyer, that you can later rely upon as a binding contract between you and your former spouse governing the entire dissolution of your family relationship in every last legally important detail, most notably asset split arrangements, child care arrangements, and child and spousal support issues. 

Keep that split out of court, and your legal fees are guaranteed to be reasonable. Go to court, and legal fees will be a direct function of how nasty things get. Of course it takes two to be reasonable for this arrangement to work. But so long as both parties are weighing costs versus benefits of court action from the get go, rather than just wanton revenge, you'll be on the right track. 

Separation Agreements are Just Contracts, not Magical Scrolls

Three things make for a great separation agreement: (1) detail, (2) clarity, and (3) equity. Before I started law school, I used to think family law settlement agreements magical things, forged out of special secret family law rules known only to the anointed few. But in reality, while separation agreements may be special to the parties they govern, the applicable law isn't any more special than that involved in a car rental contract. 

That's right, family separation agreements are contracts plain and simple, but of a domestic nature. Really not much different than a marriage/pre-nup contract, except at the back end of the coupledom odyssey. 

Why You Really Need a Lawyer to Make a Separation Agreement Enforceable

To all those out there thinking of drafting separations agreements themselves, I agree it is possible, but I've never to date seen a self-rep agreement that will stand up in court. Ever.

So if you are just jotting down a few points on the back of a napkin kind of thing, and don't really expect to try to legally enforce what you are writing, then yes, you can do it yourself. But if the whole reason you're writing things down is because you later want to be able to whip out the agreement in case one of you becomes "forgetful" as to what your understanding really was, then you definitely need a lawyer.

1. Why You Need Detail in Your Separation Agreement

Relationships of anything more than the shortest duration accumulate a lot of baggage. Legally unwrapping your baggage entanglements can take quite a bit of contract language. Like 20 or 30 pages or more of language. 

You've got to reexamine every part of your pre-split life, and figure out how it will continue post-split. Because almost everything beyond the relationship itself will continue. Just in a different form. Although your relationship may be dead, you (and your spouse) certainly aren't dead. Usually. 

Because separation agreements may have enduring legal effect for decades to come, they often wind up requiring a lot more detail than a last will and testament. When you die, it might take a year or two to wrap up your estate. When your relationship dies, you might still be dealing with legal fallout 20 years later if your children were very young at the time of the split. 

So the detail in the separation agreement needs to cover all contingencies. If this, then that. What happens to pensions, to life insurance, to medical and dental coverage? What if the parents develop disagreements about religious upbringing of the children? Lawyers have clauses for all of that. 

2. Why You Need Clarity in Your Separation Agreement

Just because you've got detail, doesn't mean you've got clarity. You might have all sorts of clauses in a separation agreement that you're really proud of, but they might not all mesh together well. Or some of the clauses may be vague in their language. That kind of vagueness that you could drive the proverbial bulldozer through later if one party decides s/he wishes to test the enforceability of the agreement.

At worst, your separation agreement clauses may contradict each other, and the agreement will become unenforceable. This isn't just a drafting tip to self-reps, lawyers can run into this problem as well. If Parliament, with all its resources, can make serious legislative drafting errors that no one picks up on until a law actually comes into force, lawyers can easily mess up trading clauses back and forth in frenzied negotiation. 

Pro tip: carefully read over the final draft of your separation agreement, even if your lawyer has told you it's fine. If something makes no sense to you, force your lawyer to explain it. It might make no sense to him either. Anything can be easily fixed before you sign. After you sign, it can become a huge hassle to set right.

3. Why You Need Equity in Your Separation Agreement

Even if you've got the detail and the clarity you need in your separation agreement, you're still going to need some equity if you want both parties to respect it in the future. It doesn't matter if one or both of you are willing to give away the farm so to speak at the time of its negotiation. I've seen many cases where bitterness only sets in later, and one party then proceeds to court - often successfully and at great expense to both ex-spouses - to overturn the earlier separation agreement. 

In short, if the agreement results in someone getting the shaft, it's going to be no better than an agreement which lacks detail or clarity. You might feel good about it immediately after signing - even if you're the one with the short end of the stick - because "it's over." But momentarily feeling good, and living with the results for decades to come, are different things. 

To be sure, equity does not mean "equal." One of you might be getting more of some things and less of other things. A negotiated dissolution of a relationship will always result in trade offs. And might even lead to somewhat an an imbalance in the resulting separation agreement.

But there is a point beyond which imbalance will slide into legally indefensible. And even if defensible, do you really want to be in court constantly trying to enforce the agreement against the other party, who will probably respond with a motion to change due to differing circumstance, potentially pulling you both into the family law apocalyptic vortex you were both trying to avoid in the first place?

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Family Law Confidential Episode #2: Top 4 Legal Things to Immediately Sort Out Once You Have Split from Your Spouse

Actually taking the split plunge may mean that you've got a whole lot more on your mind than legal issues. Things like how to pay the rent. Or feed your children. But right up there on the greatest hits list need to be a few legal must dos that should be taken care of immediately after the split.

1. SEPARATE YOUR DEBT

While separating your all debt from your spouse is often not so simple to accomplish, you should nonetheless take immediate steps to separate all the debt you can. Otherwise, you risk being saddled with post-separation debt accumulation by your spouse that, while theoretically speaking in a family court context sometimes might not be your problem, practically you are stuck with because you signed payment agreements with banks and credit card companies putting you on the hook. Separating credit cards, lines of card, mortgages, and periodic payment subscriptions are the top priorities. 

So for any credit card with a zero balance that is in your name, consider cancelling the card. That way secondary card holders will also be cancelled, and you won't have to worry about who has access to your card number. Where a credit card is carrying a balance, try to find some way to pay it off (like with another loan). If you can't pay it off, consider at least cancelling all secondary card holders if you are the primary card holder. 

Don't take excuses from the credit card companies that it can't be done. There will almost always be a primary and secondary card holder. Primary card holders should be able to cancel and entire account, and secondary card holders should be able to relinquish their cards.

If the card issuer gives you hassles about cancelling a card, write a firm letter disavowing all further responsibility for expenses you don't personally incur. It won't be a magic bullet, but it may offer some protection. Even if you've only got a secondary card, you should still get rid of it to better disentangle your finances.

Separating mortgage debt would also be nice, but might not happen until a house is sold. However, if you have a line of credit that is secured to your house and is not maxed out, make sure you write to the issuer of that line that you disavow future advances made solely by your spouse, and that you want it frozen at its current level. This likewise might not always work, but it will again provide at least some protection. 

2. SEPARATE YOUR ASSETS

Your joint banks accounts held with your spouse may be where employment or other income is regularly deposited. Immediately open new accounts in your name only, preferably at a different financial institution so that no one can later claim confusion about who had authority over your accounts. As it may take a bit of time to have your payments start being deposited at the new institution, it's imperative that you act on this quickly. 

Usually automobiles or other movable property will only be registered in one of your names, so transfer to the other spouse will need to await final settlement. But real estate will often be registered in both names. If so, you may again have to await a final settlement to have it transferred into or out of your name. But be aware that an Application for Partition and Sale can be brought in Ontario outside of the context of the Divorce Act, so that if a comprehensive family law separation agreement (or court proceeding family law trial) is proving elusive, you aren't stuck with real estate hanging in limbo for years. You can bring a relatively straight forward "application" (as opposed to a more complex "action") to sell the property, and just because you are a co-owner doesn't mean you can't bid on the property, 

3. SECURE ARRANGEMENTS FOR YOUR CHILDREN

Other than debts and assets, children are usually the most immediate issue to deal with after a split. They will range from not contentious at all to a truly toxic issue of high conflict potentially engaging repeated police involvement.

Taking the initiative to propose interim child care measures to your spouse is likely the best policy to deescalate conflict. While this might seem an obvious move, my experience as a family lawyer tells me that often these conversations are very difficult to engage in immediately post-separation, but you could at least explain what you are proposing as child care arrangements by email or letter even if you aren't on direct speaking terms with your spouse.

I get that the instinct or reality may be to flee with your children for your own or their protection. There could be situations justifying that. But because "shared custody" is now considered to be the norm for best interests of the child, you'll need solid evidence to justify such action.

Otherwise, at best you might be accused of contempt of court, and at worse of the offence of child abduction. As painful as it might be, just because your spouse has been violent in the relationship to you does not necessarily mean that a risk to the children will be presumed - although Children's Aid Society (CAS) and Office of the Children's Lawyer (OCL) involvement (using the Ontario terms) might be in order. 

The spectrum of interim child custody arrangements include: 

  1. shared custody where each party has at most a 60-40 split of time with the children, leading to no child support being payable, but special and extraordinary expenses (like the dentist or soccer camp) being split according to relative incomes of the parents; 
  2. one parent having sole custody, with the other parent have regular "access," where the access parent will be required to pay child support on an interim basis according to the "table" amount based on income;
  3. one party have no or limited supervised access to the children - where there are serious concerns about threats to the children's wellbeing, including psychological wellbeing through parental alienation. 

There are lots of variations to these arrangements, but these three categories represent the fundamentals. Be aware that the first option of shared custody will be the norm, unless both parents consent, or get a court order. The caselaw is very consistent that maximum contact with both parents is in a child's best interests, absent exception circumstances. 

4. SECURE A MEANS OF SUPPORT FOR YOU & THE CHILDREN

Regardless of how many things you might simultaneously need to be dealing with after a split, feeding yourself and your children really need to be at the top of the list. Where both parents have relatively high and relatively equal incomes, this might not be such a top priority as arrears in child support by a non-custodial parent can often be dealt with later in final terms of settlement (like through one party giving more or fewer equalization assets to compensate for a lack of earlier owing support). 

But when you can't pay the rent, securing a means of support needs to be the top priority. If you're the spouse who sacrificed a career to stay home with the children, you're going to need interim spousal support, even if you share custody to such a degree that neither of you pays child support. Unfortunately spousal support has turned into the battleground that child support used to be until the child support table guidelines turned the calculation of child support into much more of a mathematical than legal exercise. 

Sorting out these top four legal things to deal with immediately upon separating from your spouse may not require going to court, but they should involve a lawyer. In Ontario, Legal Aid Ontario runs Family Law Information Centres (FLIC) to help those who financially qualify, and also provides private lawyer certificates to family law counsel to help you; I'd say at least half of Ontario family lawyers take these certificates (we certainly do), though sometimes services may be more limited than those available to "cash" clients (for instance, legal aid usually won't fund travel, so we're more limited in the geography within which we can operate). 

And even for those who need to pay for lawyers themselves, I always say that legal "advice" can be great value in preventative medicine. It's the going to court that can get costly, and thus you should do whatever you can to avoid that court journey if at all possible (including paying a lawyer for advice and negotiation services). 

There's lots of mythology around family law. Don't become lost in the Maze of Minos. 

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Family Law Confidential Episode #1: Things to Sort Out When Thinking About Splitting From Your Spouse

Many people think hard for months or years about splitting from a spouse before actually doing so. They weigh the emotional pros and personal cons of the split. How it might affect their children. How it might affect the family financially. But they often don’t speak to a lawyer prior to the split. 

I get that. I understand that you might not know it's going to happen until it happens. That you’ve got things on your mind. And frankly, advance legal advice won’t always prevent all the difficulties that might flow from a split with your significant other. 

But what I the family lawyers would ask you to consider prior to your split are a few factual details that will make your legal life a whole lot easier after the fact. These are things that while they can be dealt with after your split, can become a whole lot more difficult to resolve depending on what you’ve done or not done. 

1. Pull Together All Your Documents

Lawyers (and courts) love paper. People (unfortunately) lie all the time about things, but documents usually can be trusted.

Sure, people occasionally forge documents, but in my 23 years of lawyering, I’ve found it to be pretty rare. So if you’re going to need to prove certain things about your family and finances after your split, documents are the best way to do that. 

After the split, you might lose access to documents, which is why you should gather together what you can before any change. Of course if you’re not the one initiating the split, you might be playing catch up, but just because your spouse has told you about a split doesn’t mean that your lives have necessarily significantly diverged yet. That might come in the following days or weeks. So act now on the documents, before it becomes difficult.

You need to gather documents primarily from four areas of your life:

  • financial (bank account, credit card, and investment statements);
  • taxes (income tax returns and notices of assessment for last 3 years);
  • property ownership and encumbrances (house title, car title, mortgage, liens);
  • children’s records from school, immunization, passport and other records.

Electronic or paper copies are fine. You don’t need originals, photocopies are fine (though originals are nice to have). Having these documents in hand will make both your and your lawyer’s life a lot easier (and less expensive) in the future.

2. Figure Out Where You Are Going to Live  

In the good old days, which really weren’t so good, one party would move out, and that would be that. Now, couples conduct wars of attrition, with each spouse remaining in the family home as long as possible so as to not lose possession of it. It's true that if you move out, your spouse might change the locks on you, and it will be difficult to get back in short of having a court order. 

The key to determine here is do you want to keep the house, would your spouse want it, or would you both need to sell and find a new place?. Secondly, what would each of you do in the interim for accommodation?

I know you might not come to any firm conclusions about where to live prior to the official split, but since the family home is for many couples their primary asset, it’s important to start working out these details. 

3. Figure Out Logistical Arrangements for Children

The default is now shared custody. Even if that isn’t the end result of your family change, you’ll still need to determine what you believe to be in the children’s best interests in the short term concerning school, care, and housing. While finalizing children’s interim arrangements might take some negotiation with your spouse, you should figure out your position in advance. 

4. Figure Out Your Source of Interim Income

If you’ve personally got sufficient employment income to keep you and your family supported in the short term, you may not need to worry about this one. But if you don’t, then you’ll need to figure something out. It could be using savings, it could be taking on debt. Whatever it is, it may become more difficult to execute such a plan after a split.

You are not well advised to strip all family assets, as that won’t play out well before a court who will later make a ruling on your case. But you still need an interim financial game plan. 

The reason these four factors are so important to figure out in advance of a split, if possible, is to avoid having to rush to court to deal with interim issues. I always advise my clients that family lawyers are a bargain if a settlement agreement can be kept out of court, but as soon as court proceedings commence resources start to be depleted due to all the legal pleading drafting, letter writing, and court appearance time that is required. 

If you've secured and figured documentary disclosure, accommodation, arrangements for children, and interim support all in advance of a split, then it's unlikely you'll need to rush to court to demand help with any of those items. But if accommodation, children and support all remain uncertain points of great contention, then court might be your only option - which is where at least having a treasure trove of documents will serve you and your lawyer well. 

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

 

The 2 Core Family Law Principles Everyone with a Family Needs to Know About

A lot of the law is based on obscure legal principles, whose origins date back hundreds and sometimes thousands of years. Criminal law and business law can be like that. 

But family law as we know it has only really existed in Canada since 1968’s amendment of the Divorce Act permitting no fault divorce after three years of separation, reduced to a one year waiting period in 1986. 

Although family law court litigation remains mired in procedural technicalities - despite repeated attempts to simply it - the law upon which such litigation is based can be simplified to two core principles. Embracing these principles enables you to predict with some accuracy the results of all disputed family matters! Seriously. 

The principles are: (1) fairness, and (2) best interests of the child. That’s it. This is not an oversimplification. 

On many levels, so called “family law” is barely even “law.” Rather, it's more social policy that happens to be administered by judges because no one can think of anyone better to entrust with it. There have been repeated calls to take family law out of the courts - even by some family judges - but to date other than the advent of mediation and collaborative family law which might work in less adversarial situations, no one has  come up with any alternatives that really work. 

What does fairness in the family law context mean? 

The principle of “fairness" is at the root of family law division of property calculations (mostly 50-50, with some notable exceptions), family law spousal support calculations (generally limited to the amount of time necessary to enable a spouse to be self-supporting, but could be lifetime for older spouses in long term relationships because of sacrifices presumed for relationship), and child support calculations (now tied directly to payor’s income through a prescribed formula, with “special and extraordinary expenses" like camp or dental care shared between spouses proportionate to relative incomes).

What do best interests of the child mean?

The "best interests of the child" principle is at the root of why the courts continually urge maximum contact with both parents, and support findings that it is the parents and not the children who should be making any sacrifices consequential to the breakdown of their relationship. Thus the courts support disrupting a child’s routine as little as possible notwithstanding parental preferences, and any established “status quo” is highly likely to be maintained by the courts, unless it is clearly not in the best interests of the child.

How does knowing these two core principles of family law help me? 

First, knowing enables you to understand that family lawyers aren’t black arts sorcerers capable of invoking ancient legal family law texts to achieve perverse, shocking and unpredictable family law results. Family law is not rife with obscure loopholes that let one spouse get or lose all the money and children. Who gets the money and children will be based on fairness and best interests of the child. 

Second, knowing enables you to predict with some certainly the ultimate outcome of family law proceedings, regardless of how much money and time you or your former spouse spend on lawyers and the court system. True, there are some outlier results. You could be lucky or unlucky enough to draw a particular judge who leans one way or the other on your facts, and you might have achieved a different result with a different judge. But appellate courts will always be hovering overhead, ready to overturn perverse results that don’t accord with normal conceptions of fairness and best interests of the child. 

Why you need evidence and legal advice to take advantage of the principles

Knowing something, and being able to implement that something, are not always the same thing. Knowing should give you confidence, and enable you to make rationale decisions based on likely results. But operationalizing knowledge of the family law world requires one and possibly two additional ingredients beyond the core principles

First, you need to know that in establishing what fairness and best interests of the child really mean practically on the ground, you need to amass evidence. Documents. Witnesses. Expert reports. 

Without evidence, family courts are left in a vacuum. And lopsided evidence, where one party produces almost all the evidence - usually not surprisingly evidence in that party’s favour - can lead to lopsided, unfair results. Results that really aren’t fair and aren’t in the best interests of the child if the real balanced truth had been known, but courts can only base their application of those two core principles on evidence, not on solely the argument and conjecture of the parties. 

Second, you need to realize the lawyers really are helpful in advancing these two core principles, largely because of all those procedural technicalities that lie in wait to trip you up. Family lawyer help that stays out of court can be very affordable. For those with the lowest incomes, government funded legal aid may be available - especially where children are involved. But even for those who already are in court, and who have to pay themselves, approaching your case as a collaborative effort with your lawyer, where you both carefully make strategic decisions that maximize the value of every dollar you spend is likely to lead to the best outcome, at the most reasonable cost. 

I do get that if you are up against someone utilizing scorched earth tactics in family court, with that person either being represented by a lawyer or acted as a self rep, your legal representation costs can become a major challenge. There, you might need to rely on what are sometimes called unbundled legal services, where a lawyer assists you behind the scenes, and you do some of the work yourself.

I’ve unfortunately seen some truly shocking, tragic results where one party has had a lawyer, and the other party is completely without any legal advice - despite those two most sensible core family law principles. It shouldn't be that way, but it is. 

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Is it Time to Abolish the Concept of Child "Custody" in Canada? How you can maximize contact with your children & Minimize Conflict in Achieving that contact

In 2014 the English legal system abolished the concept of "child custody orders" in favour of rather inelegantly titled "child arrangements orders." It likewise abolished the "custodial parent" term in favour of "parental responsibility." It's a whole lot harder to yell: "damn you, I'm going out to get ... a child arrangement order ... and take parental responsibility" in a threatening kind of way than if the word "custody" was used repeatedly in those threats. 

Who gets the kids has been a prime legal battleground throughout the history of divorce and separation, with highly variable results notwithstanding the "best interests of the child" test.  A full 37 years ago, Psychologist Mary Ann Watson in the journal Family Relations published an article entitled "Custody Alternatives: Defining the Best Interests of Children" which explained: "Until the 1920's Anglo-American law had no difficulty in resolving parental disputes concerning custody. It was presumed that custody should go to the fathers as head of the family. The mother was a legal non-entity. Then, as ideas about the crucial role of the mother in child rearing became more widely accepted, courts altered their views to a presumption that the child belonged with the mother. Thus, in more recent years, the custody of approximately 90% of children of divorced parents has been awarded to their mothers ... [but] there have been a growing number of parents who have been advocating a more balanced solution to the question of custody."

In more recent decades "shared custody" and "joint custody" have become in vogue, because of better understandings that the best interests of the child involve maximizing contact with both parents. But the persistence of the word "custody" might still engender conflict. Is it time to semantically clean the family law house in Canada? Should we stop talking about supposed winners (those who get "custody"), and losers (those who get something called "access"), and instead just talk about the end result of best interests of the child? 

What means Are Available for Arriving at a Child Arrangements Order?

There are four ways to determine how much time a child spends with each parent post-separation, and who makes which decisions concerning a child's life: by agreement of the parents Informally, in a Parenting Plan, in a Separation Agreement, or by Court Order. Choice of means to agree largely depends on the ability of parents to communicate and the need for future enforceability (the more formal the agreement, the more enforceable it will be). Negotiation, mediation and collaborative family law are all viable, less expensive, and potentially more effective alternative dispute resolution (ADR) processes to court-based processes.

What Does Best Interests of the Child Really Mean?

The federal Divorce Act at s. 16 considers the best interests of child to be “as determined by reference to the conditions, means, needs and other circumstances of the child.” Courts are prohibited from taking past conduct of a parent into account in determining child custody arrangements unless relevant to ability to parent. Sub-section 16(10) of the Divorce Act promotes maximum contact with each parent.

The Ontario Children’s Law Reform Act governs the best interests test when there are no divorce proceedings. That provincial Act is more explicit than the Divorce Act in defining “best interests” as including the child’s preferences, stability of environment, and abilities of parents.

Although courts used to rely quite a bit on experts in determining what "best interests" amounted to, increasingly judges are just using their own experience to make such determinations, which are guided by a lot of common sense, as foreign a concept as that might seem to a formal legal process. 

Are Courts keen to Make Family Assessment Orders?

While a court may order an Assessment of the needs of the child and ability and willingness of the parties, such assessments are time-consuming, expensive, intrusive and will not finally determine custody and access issues (which are left to the court to decide).

A court order may also be sought to involve the Office of the Children’s Lawyer, either to have a government-funded lawyer appointed to represent the interests of the child (unlikely if the children are very young and can’t express preferences), or to have a social worker assigned to conduct a Clinical Investigation which will be similar to a Custody and Access Assessment except be funded by the government. However the Office of the Children’s Lawyer can decline a file, which it often does. 

Don't count on a court being convinced it needs expert evidence to determine what best interests amount to. Instead, provide the court with the most detailed picture possible of what you belief the child's life should look like and why. 

Five Legal Lessons of Child arrangements

While it's hard to say whether people fall to fighting more over money or children when relationships break up, it's certain that disputes over children have the potential for lasting much longer and taking a much greater emotional toll than money fights. Among the prime legal lessons of child arrangements for separating parents who want to maximize contact and minimize conflict are:

  1. try to take an objective view of what others will perceive to be in the best interests of the children; 
  2. structure your proposed parenting plan around those best interests;
  3. don't take an extreme position that forces a court to be the final decision maker about those best interests, instead be proactive in attempting to agree on a plan that is acceptable to both parents;
  4. use every ADR tool available to retain some control over the form the final arragements will take and to limit your legal fees;
  5. it will be expensive, time consuming, and difficult to enforce every detail in a child parenting agreement through a court, so if you run into compliance difficulties consider returning to those ADR tools and use the courts as a last resort. 

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages. Learn more at www.nofearfamily.com