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. 

The Problem & Promise of Family Law: Child Custody

If people have been unhappy about lawyers and the courts for a long time, they've been especially unhappy about outcomes in family law cases. This dissatisfaction is unfortunate, because the family lawyers I know are among the more committed members of the profession.

There isn't a lot of glory in family law, the clients sometimes can't afford to pay much, and protracted litigation often leads to lose-lose results. Family law is also likely the area of legal specialization with the highest lawyer burnout rate from what I've seen. The burned out usually don't quit law completely, they just get out of family law, adding to the already serious shortage of lawyers willing to take on these kinds of cases. 

I practice family law myself at least in part because of the shortage of available lawyers which I feel it's my public duty to address, and because I believe family law case results are perhaps as crucial to client happiness as any kind of legal results can be. 

Because this is a relatively new area of the law, it remains a very dynamic one where courts and legislatures are constantly creating new principles. There simply isn't hundreds of years of history to family law to fall back upon. One set of principles which has stabilized of late involves child custody and access. Everyone now agrees that the best interests of the child are the key considerations when making decisions about child custody and access. 

How to Secure Child Custody

Custody and access can be agreed upon Informally, in a Parenting Plan, in a Separation Agreement, or by Court Order. Choice of means to agree 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, arbitration, and collaborative family law are all viable, less expensive, and potentially more effective alternative dispute resolution (ADR) processes to court-based processes.

Having custody means you can generally make decisions about care, education and religious instruction unless agreement or court order says otherwise. But views of a non-custodial parent can’t be completely ignored, and the non-custodial parent has right to general information about these decisions and welfare of child. Joint or Shared Custody means both parents share decision making. 

What Does Best Interests of the Child 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 where there are no divorce proceedings. It's more explicit than the Divorce Act in defining “best interests” as including the child’s preferences, stability of environment, and abilities of parents.

What Kind of Family Assessment Orders Can a Court Make

Courts will often maintain the status quo, so initial informal arrangements concerning custody, access and parenting can become very important factors in the longer term. 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. 

Six Legal Lessons of Child Custody

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. The legal lessons of custody and access for separating parents are:

  1. ideally, be aware of the law of child custody and access before you separate;
  2. try to take an objective view of what others will perceive to be in the best interests of the children; 
  3. structure your proposed parenting plan around those best interests;
  4. 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;
  5. use every ADR tool available to retain some control over the form the final custody and access agreement will take, and to limit your legal fees;
  6. it will be expensive, time consuming, and difficult to enforce every detail in a child custody and access agreement through a court - if you run into compliance difficulties, return 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, and is the founder of nofearfamilylaw.com.