Your decisions for your children post-separation do not have to fit a "one-size-fits-all" mold. The best decisions are individualized - for each child and each family (even when no longer intact). Mediation gives you a chance to explore options for such decisions.

The Mindful Separation

Dealing with a separation is a lot like breathing badly - you take short, shallow breaths, sometimes they come fast and furious and yet, you never truly fill your lungs.  Poor breathing, just like a chaotic, toxic separation, exposes you to making decisions based on emotion rather than common sense and reason. None of this is helpful to you - more than likely, it will lead to poor outcomes for you and your children and, at the very least, prolong the process of tidying up all issues arising out of your separation.

At our offices, we encourage both our clients (and pass on the same message to the other side):

1.  To remain as calm as possible and try to separate emotion from decision-making. 

2. To be mindful of their circumstances, both "the good and the bad", and to practice self-acceptance and self-compassion.

3. To seek professional, counselling assistance if our client feels overwhelmed and unable to make reasoned decisions and choices based on legal advice.

4. To be mindful of their circumstances, both "the good and the bad", and to practice self-acceptance and self-compassion.

5. To rely on support networks, including those offered by family, friends and support-groups.

6. To be mindful of their circumstances, both "the good and the bad", and to practice self-acceptance and self-compassion.

7. In assessing the actions and positions of their separating spouse, to do the best possible (given the actual circumstances of the case) to limit judgment and emotion.  For many spouses, separation is a traumatic, sometimes life-altering event - we understand and accept that - the sooner our client is able to complete the steps required to finalize all issues arising out of a separation, the sooner they will be able to move on and heal.

(yes, we do realize we repeated the same point three times)

NOT EVERY FAMILY LAW CASE ENDS UP IN COURT  - you have a number of options on how to handle your separation, which do not involve Court. Call us to find out more about those options.

What is an uncontested divorce?

The answer to the question above depends on how "divorce" is defined.

If by divorce, we mean the steps of formally ending the parties' marriage by a Divorce Order, granted by the Court, then here, an uncontested divorce is one which is either:

(a) proceeding on the consent of both parties; or
(b) is requested by one party and not opposed by the other.

A divorce in such a case can proceed either at the request of one spouse or based on a joint Application made by both parties. Uncontested divorces are quite common - they involve primarily the completion of the required paperwork, its service on the other side, its filing with the Court and a Judge's signature.

If by divorce, we mean all of the issues arising out the separation of a couple (for example custody, child support, spousal support, etc.) then uncontested divorces in this instance are less common but they are still possible. There are couples who work out all the terms of their separation directly with each other and then one retains a lawyer to incorporate them into a separation agreement, for example. There are also situations where the agreement is reached in the context of mediation.

Not every separation results in an "all-out fight" between the spouses - if you are interested in finding out how to complete a sane separation and divorce, please contact us for more pointers.

When we hear: "I am in Court without a lawyer"....

I was recently interviewed by Advocate Daily about a very important and complex subject, namely, the ever-increasing number of unrepresented litigants in court, and in family court in particular.

Here is the article resulting from the interview....

Bench and bar must accommodate unrepresented litigants when possible

Tips for completing a Financial Statement (4) - Ontario

This is one in a series of our posts on this topic.

A Financial Statement is likely the most important document you will complete in a family law case.

We have never heard a client say "oh boy, I am looking forward to filling out this form" on receiving the blank draft but do not let the document scare you into inertia.

You will need to set aside quiet time to complete the document in draft, as best you can. If you get stuck, the trick is not to put the exercise aside and forget about it - the trick is to get motivated and get help, if necessary. This help may come from your lawyer and/or their Law Clerk (at a lower rate, we might add).

The key is to identify that you need help and to ask for it. All questions are reasonable - do not be afraid to ask. Remember that if you get stuck on an area of the form, that likely means the information is not straightforward - all the more reason your legal team should know about it and assist you in identifying it properly on the Financial Statement.

Financial Statement are fundamental to all family law cases. You and your spouse will each have to complete this document whether you are negotiating the outstanding issues, whether you are mediating them, arbitrating them or having them resolved with the assistance of the Court.

Financial Statements tell the reader a lot about you and your financial circumstances, at various points in time. This information, in turn, may be vital to your ability to pursue certain claims before the Court. What does this mean? For example, if you are asking for spousal support, you need to establish on your Financial Statement that you have need (you do that in your budget/Expenses) and also that your income is not sufficient to meet that need (this is not the only basis on which spousal support may be ordered but we are using "need" here to illustrate our point). By way of another example, if you are making a claim of equalization and you had significant assets at date of marriage for which you wish to take date-of-marriage deductions, then these assets need to be properly reflected in the assets portion of your Financial Statement.

TIP #4 re: completing a Financial Statement - the better you understand the reason you are expected to complete a particular section of the document, the more on-point and accurate your entries will be. Ask questions if answers to them will help you understand the form. You will be helping yourself and your legal team.

The trouble with Ashley Madison....what next?

The last two months or so have been a stressful time for many users of Ashley Madison. Once hackers claimed they had accessed the personal information of many users and threatened to expose that information on the World Wide Web, many wondered what that would mean for their marriages and other long-term relationships.

As of last night, the level of stress rose for many - the hackers claim they have actually posted the information on the web, for public access and consumption. What now, you may ask?

There are many misconceptions out there about the impact of infidelity on claims in a divorce or a cohabitation, common-law relationship (in Canada).

Canada has a no-fault divorce system. That being said, there remain three basis on which a spouse can claim an actual divorce - a one-year separation, infidelity and cruelty. The last two are pleaded very infrequently these days, largely for technical reasons and given most divorces are not granted until a year after the separation in any event.  The impact of your conduct (if you have been unfaithful) or your spouse's conduct (if they have been unfaithful) varies from case to case. It also depends on the nature of the claim being made and the nature of the conduct.

* If your marriage or relationship has or is about to end because of information the hackers may have posted or if you are concerned that the information may come out (but has not yet come out), we strongly encourage you to get legal advice on the impact of this information on your case.

* If you are a spouse who has been confronted with information flowing out of the Ashley Madison hack, we encourage you to seek legal advice as well.

Do I need a lawyer to go to Court?

More and more people ask this question, particularly as the costs of living increase and financial pressures on average Ontario families mount.

The simple answer is "no, you do not".  There is no rule which says that only lawyers can present or defend cases in Court.

Courts in Ontario are equipped to deal with people who come before a Judge without a lawyer. Such individuals are referred to as "unrepresented" or "self-represented".

Now let's consider the question from a different perspective and use the following analogy to illustrate the point. What is the answer to the following question: "do I need a doctor to treat my red eye?" The simple answer is you do not - you can certainly treat the problem yourself and you may be able to cure the problem too, after trial-and-error with different remedies at your disposal. On the other hand, if you see a doctor about your red eye, he/she may diagnose the problem with more precision and zero in a lot faster on the treatment, including prescription medication, all leading to a speedy recovery.

Back to our lawyer question: an average person on the street is not trained on what family law legislation says and means, and what case law has provided by way of precedent. Nor is he/she familiar with court administration and the rules related to the conduct of a family law case (and all unrepresented litigants are expected to "play by the same rules" as those who attend with lawyers).

The right lawyer CAN help your case move forward faster and in a more organized way. Most importantly, a lawyer is able to advise you all issues relevant to your circumstances - you may not even be aware of such issues because you lack the legal training.

If you cannot retain a lawyer to act for you then at least invest in a consultation as to your legal rights. It's important.

UPDATE - January, 2018

We are pleased to let you know that our Etsy shop is now OPEN!

Visit it here: SELFREP SUPPORT

In the shop, we make available to you Manuals (E-books) on various topics, to assist you in representing yourself before Ontario's family law Courts.

So far, we have Manuals on preparing an effective:

• Financial Statement (both long-form and short-form); and
• Affidavit.

MORE MANUALS TO COME! 

Child Support is the Right of a Child

We were recently involved in an arbitration which addressed the following question: "Can parents ever make final arrangements as to child support?" For example, can one spouse agree not to seek child support from the other or to accept less support that the law would provide?

I think that most people would be surprised by this question. They would respond: "Of course they can - only parents know what is best for their children and if they agree with each other what support, if any, should be paid, it's their business and no one else's".

The issue is not as simple as that. In fact, child support is the right of a child and not the right of either parent. Parents do not have the right to bargain with that support. This has been confirmed in a number of court decisions, the most notable one being that of the Supreme Court of Canada in Richardson v. Richardson.

Simply put, courts in Canada retain the right to interfere in "deals" made by parents where such deals do not provide for adequate child support. The measuring sticks are, firstly, the Child Support Guidelines (federal or provincial, as applicable). There are situations in which a parent can demonstrate that even where the terms of the deal are a departure from the Guidelines, the support is reasonable in the specific circumstances of the case.

Here is the issue: arrangements made between parents which do not consider, in advance, the courts' "big daddy" role when it comes to child support and the best interests of children may be vulnerable down the road so it's best to seek legal advice on this issue. Specific wording in a separation agreement, for example, can address this point to a great extent (and also deal with the expectations of the courts' when considering a request for a divorce...which is a subject we tackle in another post)......

What is a "nesting arrangement"?

A nesting arrangement, also known as a "bird's nest arrangement" or "bird nesting arrangement" is one in which a child or children continue to live in the residence which was their home at the date of their parents' separation.  This, in and of itself, is not uncommon post-separation but here, the parents' time with the child/children is based on their moving in and out of the home for fixed periods of time. Just like birds taking turns to look after eggs or chicks in a nest, these parents return to the home based on a fixed schedule while the children continue to live in the home without interruption.

All residential arrangements for children have their unique pros and cons. Some argue that nesting arrangements are least disruptive to children's lives.  For example, they enable the child/children to continue to attend the same school and to maintain their peer relationships and activities. On the con side, the nesting arrangement means that the parents need to obtain their own accommodations for those periods of time when they are not residing in the home with the child/children. In other words, three separate residences are involved (one for the children and two for each of the parents). The reality is that a true nesting arrangement is possible only in cases where the parents' financial means permit it. It can be expensive.

Nesting arrangements can only work in situations in which the parents remain civil and cooperative with each other. There are many reasons for this.  By way of one example, if a nanny is involved, cooperating parents will continue to have the same nanny assist the children/parents when both parents are in the home. If parents are not cooperative with each other, one parent might, for example, insist on a care arrangement for the child/children which is different than what the other parent wants (e.g. not a nanny). This creates a logistically difficult situation, for all concerned including the nanny.

In our view, nesting arrangements are feasible only on a temporary basis. It is difficult to imagine two adults (the parents) continuing to reside in two residences on more than a temporary basis.

When it comes to children's residential arrangements, there is a number of reasonable alternatives which we discuss elsewhere in this blog. If you are interested in exploring these alternatives further, we suggest you speak to a lawyer who has experience in this area.

 Park of Schunbrunn ~ Gustav Klimt (1916)

"Normal" or "usual" access schedule

We are frequently asked by parents about a "standard" or "normal" access schedule. Is there such a thing?

Not really ~ access schedules vary with families, the parents' work commitments and the child's/children's needs but there are some patterns (assuming parents are not sharing the children's residence), for example:

1. Alternating weekends, with a mid-week visit. Here, there may be variations as to:

a. the beginning and end of the weekend access (eg: Friday after school or Saturday morning (for the start) and Sunday evening or Monday morning at school (for the end);

b. the duration and frequency of the mid-week access - it may be an overnight or just dinner, for example. It may also be limited only to weeks which do not end with the access parent's weekend.

2. alternating Saturdays and Sundays (with the parents sharing each weekend but alternating as to the day);

There are a number of other variations of the above themes, depending on each family's needs.  The keys to making any access arrangement work, for the children and the parents, are:  open minds, good faith, patience and a recognition that children must never be caught up in disputes between their parents.

Amedeo Modigliani - Seated Woman in Blue Dress - 1918

"Legal Separation"??

The term “legal separation” is often misused and frankly, misunderstood. I often have individuals calling me because, as they say, they want "a legal separation".....

Whether a couple is separated or not is a question of fact. It is sufficient for one party to give effect to a separation, by their actions. The other side does not have to be in agreement with the separation for it to occur.

Contrary to a prevailing notion, a separation of a couple does not have to be registered anywhere or legally confirmed in writing in order to take effect.

In Ontario, the date of separation is relevant to at least two issues, namely, the divorce and the equalization of net family property (property division).

For more information, I encourage you to seek legal advice from someone who routinely practices in this area of the law.

Work by Gerard Dubois