May 2, 2013
by Jennifer Samara Shuber
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Beware the status quo. Bring family law custody appeals in a timely fashion or face the consequences…

Perron v Perron is a custody case decided by the Ontario Court of Appeal where the issue of language education featured prominently.  It contains interesting commentary not only on the status of French in Canada and education as an aspect of custody, but also on the importance of timely appeals and the impact of status quo.  

The parties were married in 1996 and have three children. The father was a native French speaker who taught at a homogenous French language school. The mother was a native English speaker with some knowledge of French, whose mother was francophone.

When the parties separated in 2006, the three children were enrolled in French Immersion, a program to which both parents had agreed.  The father changed his mind after separation and wanted the children enrolled in a homogenous French language program. The mother objected, stating her desire that the children receive education in both English and French, as was the case in French Immersion.

At trial, the father asked for sole custody, or in the alternative, joint custody of the children and the mother sought sole custody.  As an incident of custody, the father also asked for an order stipulating that the children be enrolled in a homogenous French language program.  After a ten day bilingual trial, the Superior Court judge awarded custody to the mother with access rights to the father.  The trial judge’s reasons were silent on the issue of the children’s language education.

The father appealed, claiming that the trial judge should have considered whether it was in the best interests of the children to order homogenous French language education for the children as a condition of awarding custody to the mother.  He also asked for an order requiring the mother to enroll the children in a homogenous French language school.

The Court of Appeal decision unequivocally recognizes the essential role of the French language in Canada and extolled the virtues of homogenous French language education.  Interestingly, and despite the Court of Appeal’s confirmation that the trial judge erred in failing to consider ordering homogeneous French language schooling as a condition of custody order, the court had ruled against the father.  Acknowledging that courts regularly include conditions such as those requested by the father, the court still declined to move the children to a homogenous French language school.  Considering that more than two years had elapsed between the trial and the appeal, the court found it would be contrary to the children’s best interests to mandate a change in school.  The children had spent all of their educational careers to date in an Immersion program.  They were in Grades 5, 3 and 2 respectively at the time of the appeal and had never known anything but French Immersion.  The court felt this fact was fatal to the father’s appeal.  Despite the advantages the children would have enjoyed through homogenous French language instruction, a change in schools would not be made as it was not in their best interests.

April 26, 2013
by Sarah
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The ties that keep binding…Sharing post-separation income with your ex spouse

At what point after separation do former spouses truly have economic independence from one another? Child support obligations tie parents together until the children become independent adults. That may be a lengthy period of time after separation but it is a defined period. For spousal support obligations there  may be no clear end date to the obligation. Unless former spouses have agreed to release each other from future claims or have agreed to a fixed term limit for support, the obligation can continue indefinitely. That leaves open the possibility of ongoing legal expense and uncertainty. Spousal support may be adjusted to reflect changes in the former spouses’ lives such as retirement, job loss, remarriage or ill health. There is a lack of clarity in how and when spousal support should be adjusted in the years after the initial settlement. One of the most contentious questions is whether a support payor is required to share increases in income which occur after the separation.

Spousal support is justified in one of three ways: (i) the couple agreed to spousal support, perhaps by a marriage contract; (ii) one of the spouses was disadvantaged economically by the relationship and has a right to compensation; or (iii) one of the spouses is in need. The amount of spousal support should reflect the couple’s lifestyle during their relationship and  is directly related to the payor spouse’s income at the time of the separation. What if a support payor’s income increases substantially in the years after separation? Does the support recipient have a right to come back and ask for more? The answer is not at all clear. Courts have not dealt consistently with these cases. The uncertainty in this area promotes conflict and litigation.

The argument in favour of allowing a support recipient to share in the payor’s good fortune post – separation is that in some respect that success relates to the other spouse’s contribution during the marriage. That may be because the payor spouse acquired professional qualifications, started a business, or started to climb the corporate ladder during the marriage which led to financial success later. On the other hand, post-separation success may be largely attributable to the hard work and creativity of the payor spouse. Others, such as a new spouse, adult child or business partner may have contributed to the post-separation success. The idea that spouses acquire a property interest in each other’s careers has long since been rejected by Ontario courts, yet sharing post separation income increases looks a lot like sharing ownership of a career.

Courts are more likely to order a payor spouse to share increased income if it is earned in the same business in which the spouse worked during the relationship.  Also, an increase in income close in time to the separation is more likely to be shared than when the increase comes many years later.  Some courts require very specific contributions to the ultimate benefit, such as paying for a spouse’s professional education. Other courts have accepted typical domestic services such as caring for children or the household as being sufficient to entitle a spouse to increased post-separation income.

The uncertainty as to whether or not post-separation increases in income will have to be shared with a former spouse can generate conflict and litigation. This possibility is yet another good reason why it is advantageous to negotiate a lump sum payment of spousal support with a release or, at least, a time limit on support payments to mitigate this risk.

April 12, 2013
by Jennifer Samara Shuber
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The Worst Kept Legal Secret of the Decade: Family Law Needs A Complete Overhaul

Restructuring is what family law needs, says the as-of-yet unreleased report from the Cromwell committee to Chief Justice McLachlin of the Supreme Court of Canada.  No kidding.  Haven’t family lawyers and parties been saying exactly that forever?  I know I have been…

The Globe and Mail obtained a copy of the Report of the Action Committee on Access to Justice in Civil and Family Matters expected to be released this month.  Critical of the adversarial system, we are told that the report suggests a total restructuring of the family courts in order to shift the focus to mediation and settlement.  The litigation process should be streamlined and used only as a last resort.  Family lawyers and, more importantly, family law litigants have known for years that the system is broken.  The report makes a series of recommendations urging an overhaul of the current system, including:

  • The creation of unified family courts across the country, thereby eliminating the problems inherent in a system with both provincial and federal systems;
  • The imposition of severe sanctions in the form of heavy cost awards against parties who thwart settlement or behave badly in the litigation;
  • Stressing the importance and value of family law in law school curricula, in order to recognize the fact that family law disputes affect more Canadians than any other single area of law and, hence, lawyers should be trained to handle these cases;
  • Increased legal aid funding for family cases; and
  • Mandatory mediation.

I strongly support what it appears the recommendations will be and await the release of the full report.  From all that I have read so far, however, it appears that the report is missing a recommendation that I consider essential to a reduction in the need for access to the family courts: the education of the general public.  Let me explain. 

Most everyone in this country will be impacted by family law at some time in their lives, either knowingly or not.  This is because the majority of Canadians enter into at least one intimate and significant relationship in their approximately 80 years on this planet.  How do they decide whether or not they want the law governing property division on marriage breakdown to apply?  They really don’t.  How do they know when two people living together count as spouses under the law?  They don’t.  How do they know what their obligations are to their children, and even their step-children, if they separate?  Again, they don’t.  But they should.

People butt up against the family law system most often at a time of crisis.  Marriages or relationships are ending, emotions are high and much of the damage has already been done.  That is why the Family Information Sessions are too little too late.  These are two hour sessions mandated by the Court where a lawyer and a social worker present information about the effects of separation and divorce on parties and children, alternatives to litigation and court process.  Unfortunately, parties are only required to attend the Family Information Sessions when litigation is started.  By that time, most of the facts that will frame the outcome of the case have already been set.  For example, married spouses in Ontario are required to equalize their property on marriage breakdown.  Cohabiting spouses are not.  Hence, whether or not a couple married all those years ago has a significant financial impact.  As another example, a party may have, by steps taken or omitted during the relationship, unwittingly established a child or spousal support obligation. 

I do not like the idea of law applying to people without their knowing it.  But in family law, this happens all the time.  Couples marry, or don’t, without knowing what the future impact of that decision could be, which I believe is dangerous.  Family law is not intuitive.  It impacts in ways that are unexpected.  This leads to people who feel ill-used and unfairly treated by the system.  These people are more likely to challenge the results of the laws they consider unjust and, hence, litigate their family law matters.  Even if they choose not to litigate, uninformed parties take longer to resolve their matters.  They must first get over feeling duped and then learn how the law applies to them before they can take any steps towards settlement. 

Education is the only answer to this problem.  Before a couple gets married, it is imperative that they both know how the law would impact them upon divorce.  Family Information Sessions are a great idea but, in my mind, are timed wrong.  People need to attend such sessions before they marry, not when they are ending a relationship.  Parties require a licence to marry.  Why not mandate that, before a licence is granted, the couple must attend a program similar to the Family Information Session, where information about the law can be shared.  Couples who choose not to marry would not get the benefit of information this way, so we would need alternate dissemination options but it would,  at least, educate the marrying population.  Get them when they need something from us, I say.  We have a captive audience – let’s educate them.

March 28, 2013
by Sarah
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Real Homes for Global Families

Our globalized economy has more and more families on the move with ties to a number of jurisdictions. Families migrate to follow business opportunities with ease. While a family is intact the question of where their real home is of little importance. They may move back and forth between their place of birth and overseas jurisdictions. A couple may have two distinct places of origin, meet and form a family in a third and move on from there. When a relationship fails, the jurisdiction in which family law issues are settled suddenly becomes of fundamental significance. Rights to share in property, to spousal and child support, to the care and custody of children and, even, to divorce vary enormously between different jurisdictions. The choice of the law that will be applied and the jurisdiction in which any legal dispute will be resolved may determine the outcome favourably or unfavourably for each party.

Ontario has some of the most generous child and support provisions for recipient spouses in the world. Ontario imposes broad rights to share in the value of property at the end of a marriage. Our province also has even handed custody and access law with no formal advantage given to either mothers or fathers. This legal framework is advantageous to some and disadvantageous to others. There are clear incentives to selecting Ontario and to avoiding this jurisdiction, depending on a spouse’s situation and goals. A recent Ontario Court of Appeal decision, Wang v. Lin 2013 ONCA 33 provides some guidance as to how these cases will be decided and in so doing emphasizes the importance of the family’s “real home” in these decisions.

In Wang v. Lin, the family were all Chinese by birth. The parents married in China and had two children born in China. The family moved to Ontario as permanent residents in 2005. The mother and both children resided in a family home in Ontario, obtained OHIP cards, attended school in Ontario and all three became Canadian citizens. The father remained in China looking after the family businesses. He lost his permanent residency status in Canada and did not become a Canadian citizen. In 2010, the mother and two children moved back to China where the family lived together. The children attended Chinese schools and spent time with both parents and extended family. The mother’s evidence was that this move was intended to be temporary with the goals of improving the children’s Mandarin skills and for the father to obtain legal status to reside, again, in Canada. They kept their Ontario home.

In April, 2012, the mother returned to Ontario where the parties still owned a home. She started a claim for a divorce, property claims under Ontario family property law, child and spousal support, and custody of the children. She brought an application for a world- wide injunction to freeze her husband’s assets which was directed not only to China and to Canada but also to the British Virgin Islands where she obtained an order against the husband’s corporate assets in that jurisdiction. The husband responded by seeking to stay the Ontario action for lack of jurisdiction. Although when the wife started the Ontario action the children were living in Beijing and attending school there, the wife subsequently  moved the children to Ontairo and re-registered them in the Ontario school that they had previously attended.  On learning this, the husband started a family law application in China and also moved in Ontario for the children to be returned to China.

The wife’s application was under the federal Divorce Act, the provincial Family Law Act,  and the Children’s Law Reform Act. Oddly enough there are different jurisdictional tests under each piece of legislation despite the fact that most family cases involve more than one of these statutes. Simply put, to obtain a divorce at least one of the spouses must have resided in Canada at least one year before starting the claim. For spousal, child support or custody and access claims under the Divorce Act, either spouse may make a claim if ordinarily resident in a province at the outset of the lawsuit or if both spouses accept the jurisdiction. Of course, if there is no jurisdiction to grant a divorce then a court could not make an order for support, custody or access under the Divorce Act. Under the Family Law Act which governs property claims and spousal and child support claims where no divorce is sought or needed, the common law requirement that there be a real and substantial connection between the claim and Ontario governs The Court of Appeal held that ordinary residence of the family or “their real home” is a presumptive connecting factor relevant to jurisdiction. Even if jurisdiction is taken, Ontario family property law only applies if the spouses’ last habitual residence together was Ontario or they consent.  The Children’s Law Reform Act has very specific jurisdictional terms which require a child to have a habitual residence in Ontario except in the rarest of cases.

For this family, the Court of Appeal had no difficulty in concluding that ordinary residence of the parties or, in more direct language, their “real home” was in China. The existence of an intention to move back to Ontario was not sufficient to displace the facts that at the outset of the Ontario application, the family lived together in China in a family home there, the children attended school there and had close relationships with extended family there. The wife’s claims in Ontario were dismissed with an Ontario court only permitted to decide the question of whether there should be an interim solution for the children who were enrolled in Ontario schools by the time the appeal was heard.

The result in Wang v. Lin is clear enough for that family. The wife’s decision to start an application in Ontario while her children were still living in China and attending school there is stark enough to have decided the case. The fact that the family were living together in China and could not live together in Ontario as the father did not have legal immigration status here was also an important factor. The focus on identifying a family’s real home may not always be so easily determined, however. What if this family were of Canadian birth and origin and had moved to China with an intention to move back to Ontario in the foreseeable future? In that case would a court so quickly dismiss the relevance of the family intention and ownership of a home here? What if the mother had been of Canadian origin and the father of Chinese origin, with extended family in both countries? Would that have changed the result? I suspect that finding a family’s real home will not be an easy task in many cases. Given the real financial and personal implications of both choice of jurisdiction and the law to be applied, no doubt we will see many more families in these disputes.

February 20, 2013
by Jennifer Samara Shuber
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Ontario ruling supports same sex right to marry abroad…..

In January 2013, an experienced Ontario family court judge, the Honourable Madam Justice Mesbur, ruled that a British civil union between a same sex couple would be recognized as a marriage in Ontario for the purposes of property division, support and, ultimately, divorce. 

A conservative hold out, the United Kingdom does not permit same sex marriage.  Same sex couples are, however, are offered the parallel regime of being permitted to enter into “civil unions”.  These civil unions, offered only to same sex partners, provide them with virtually all of the rights and responsibilities accorded to married couples other than the name. 

In Hincks v. Gallardo this case, Wayne Hincks and Gerardo Gallardo entered into a civil union in Britain in October of 2009.  On January 15, 2010, the couple relocated to Toronto.  After their relocation, the parties’ relationship slowly began to deteriorate.  In February 2011, Mr. Gallardo filed for divorce in Ontario, but then withdrew the application.  In March 2011, Mr Hincks commenced a proceeding.  In response, Mr Gallardo took the position that the parties were not married and, as such, the application disclosed no cause of action.  Mr Hincks then asked the Ontario court to find that the civil union qualified as a marriage and could be dissolved according to Ontario law.

The sides were drawn.  The Attorney General of Canada sided with Mr. Gallardo and argued that the only available relief for Mr Hincks was in England under the Civil Partnership Act.   Since the British legislation made it clear that a civil union was not a marriage, who was Canada (a colony at best) to argue?

On the other side were the Attorney General of Ontario and Mr Hincks.  They asserted that, since the rights and responsibilities in a civil union were identical to those in a marriage, it should simply be considered a marriage.  The old “if it walks like a duck….” argument.

Justice Mesbur issued a declaratory order that the civil partnership was a “marriage” and that, as such, the parties were to be considered “spouses” as defined by the Ontario legislation.  Her Honour’s decision was primarily based on a refusal to compound or condone the discriminatory denial of marriage to same sex couples in Britain:

The parties entered into a civil partnership in the UK. They could not choose to get married in the UK because that country does not permit same sex couples to marry. That policy position runs contrary to Canadian public policy because Canadian law finds discrimination on the basis of sexual orientation prohibited under the Charter. Canadian law specifically holds that only equal access to marriage for civil purposes would respect same sex couples’ right to equality without discrimination. Canadian law specifically holds that a civil union, as an institution other than marriage, would not offer same sex couples that equal access and would violate their human dignity, in breach of the Charter.

Failing to recognize this UK civil partnership as a marriage would perpetuate impermissible discrimination, primarily because in the UK these parties could not marry because of their sexual orientation, but had to enter into a civil partnership instead.

Their union is a lawful union under the laws of the UK. Their union is of two persons, to the exclusion of all others. In the simplest terms it meets the statutory definition of marriage in Canada. Because these parties could not marry in the UK, but had to enter into a civil partnership there instead, they have suffered discrimination on the basis of their sexual orientation.

In the particular circumstances of this civil partnership, where the parties were denied the choice to marry in the place where the union was celebrated I would perpetuate impermissible discrimination if I failed to recognize their civil partnership as a marriage.

This ruling continues the proud Ontario tradition (does a mere decade qualify as a proud tradition? ) of respect for freedom of choice and recognition of all kinds of relationships that started with our very own 2003 “right to marry” case Halpern et al.  It was heartening to read Justice Mesbur’s decision confirming the Court’s commitment to the express values of equal access to marriage for all couples, same sex or not.  We’ve come a long way, baby.

February 6, 2013
by Sarah
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Why Marriage Matters

In the last two decades the Supreme Court of Canada has repeatedly turned to the different treatment of spousal relationships by  federal and provincial legislatures. The Court has considered the rights of same sex couples to marry and the rights of unmarried couples, whether same or opposite sex, to have the same financial entitlements as married couples. Now, the Court has dismissed the claim of an unmarried spouse who argued that Quebec’s denial of her right to claim spousal support or a share of property from her spouse, because they had lived together and did not marry, is unconstitutional. The claimant wanted to assert the same rights to spousal support and to a share in her spouse’s property that she would have enjoyed if her spouse had been willing to marry her. The names of the couple are not public; the Supreme Court of Canada reports the case as A. v. B.. In the press the case is known as Eric v. Lola.

All nine members of the Court heard the case. They splintered in the result issuing four separate sets of reasons. Of the nine, five judges held that Quebec’s denial of support and property rights to unmarried spouses is discriminatory. Four judges concluded that denying such rights to those who do not marry is not discriminatory. Of the five who found that the distinction between married and unmarried spouses was discriminatory, one found that the legislation is saved by s. 1 of the Charter which permits legislatures to impose reasonable limits on Charter rights.  Three of the remaining judges found that those provisions denying property rights to unmarried spouses were permissible under s. 1, although not the failure to provide unmarried spouses with spousal support rights. Only one judge concluded that the Charter requires our governments to treat married and unmarried spouses alike. In the result, the legislation has been upheld as constitutional. Quebec’s legislature may choose to reform family law legislation to extend protections to unmarried spouses or may prefer to retain the current distinction. For Quebecers the issue is now firmly back in the political arena.

The fundamental legal issue turns on what motivates unmarried couples. Have they chosen to avoid marriage because they wish to avoid economic obligations to each other? Or did they fall into a relationship gradually without heed of the economic consequences? The Supreme Court justices were divided on that issue and on the purpose of Quebec’s family legislation. They were also divided on whether the goal of family law support and property legislation is to acknowledge couples’ expectations or to protect dependant spouses from exploitation. As a practicing family lawyer my experience is that few married people have any comprehension of their mutual obligations for support and to share in their wealth.  Common law spouses similarly have little understanding of their legal obligations although many are under the impression that they have the same rights as married couples. At the outset of any spousal relationship most couples devote little thought to the business side of their relationship and virtually no thought to the possibility of separation. Even those couples who chose to enter marriage contracts or cohabitation agreements often have difficulty in imagining what the future may bring. Whether they will have children, whether the children will be healthy or have special needs, whether the spouses will have good or poor health, financial success or challenges, all these unknowns are hard to assess.

In Quebec, unless the provincial government is prepared to reform the legislation to extend protections to unmarried spouses, there is a clear financial advantage or disadvantage to marriage, depending on the economic position of the spouses. Marriage provides financial protection to the economically weaker or dependant spouse. As a perverse consequence to this distinction, economically more powerful spouses have a financial incentive to avoid marriage and simply cohabit. That leaves the weaker spouse only with the option of leaving the relationship which may be a very hard choice to make, particularly if there are children.

In every other jurisdiction in Canada, there are some financial protections for unmarried spouses. In some jurisdictions, including Ontario, there is a right only to spousal support. Only married spouses in Ontario have a statutory right to share in wealth accumulated during the relationship. In Saskatchewan, Manitoba, British Columbia, Northwest Territories and Nunavut, unmarried spouses also have rights to share in property. This presents a real problem for couples. Not only does the disparate treatment lead to confusion about what legal rights and obligations exist for married and unmarried alike, but moving to another province may entail the acquisition or loss of these rights. Even if a spouse is that rare creature who fully researches the legal obligations of marriage and of cohabitation in one province, what if she moves mid relationship? She might decide not to get married while living in Ontario and choose to leave the workforce to care for her children secure in the knowledge that she can seek spousal support from her partner if the relationship fails. If mid relationship her partner is transferred by his employer from Toronto to Montreal where she follows him with the children, she has suddenly lost all her rights to spousal support. What if a spouse living in Hamilton decides that she does not wish to get married because she does not want to have any property obligations to her partner but then is transferred to Winnipeg where he has property rights he can exercise against her? One answer is for all couples, whether married or not to enter into domestic contracts to structure their financial relationships and to keep a close eye on legislative developments in 13 jurisdictions. That seems an unlikely prospect. Given human nature, a more realistic goal is for Canada’s 13 provinces and territories to bring their family law regimes into conformity. Family law should be clear, predictable and accessible. There is no justification for the current situation which places such a high onus for financial and legal planning on individuals.

January 22, 2013
by Jennifer Samara Shuber
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Family Law Arbitrations: Play Ball!

Parties choose to arbitrate their family law disputes for many reasons: the privacy of the process, the cost, the ability to appoint a decision-maker who is a family law expert as opposed to our generalist judges, etc…   Arbitration is, in a sense, a “private court”.  One would, therefore, perhaps expect its process to mirror that of our Ontario courts.  Not so, says the recent decision of the Ontario Superior Court of Justice in Kroupis-Yanovski.  Thankfully, in this case, the court held that a process that differs from that of the courts can, and did, afford parties procedural fairness.  Or, put another way, there is more than one way to get a fair result.

Following separation, the wife commenced court proceedings claiming custody, support, equalization of net family property, and other relief. While the proceedings were ongoing, the parties entered into a consent order referring all of the issues to mediation/arbitrator and granting the arbitrator all of the powers of a Superior Court judge.  Following the order, the parties entered into a mediation/arbitration agreement appointing the arbitrator to mediate and, if mediation failed, permitting that same person to arbitrate the various issues between them. The Agreement permitted the arbitrator to determine the arbitration procedure in consultation with the parties’ counsel and that the procedure would be “similar to a court procedure where possible”.

The arbitrator had a volume of evidence to consider, including the parties’ sworn Financial Statements, their Tax Returns, bank account statements, credit card statements, and some information regarding past income-splitting by the husband. When determining the process for the arbitration (i.e. how it would happen), the arbitrator proposed to arbitrate via “final offer selection” (also known colloquially as a baseball style arbitration). The parties agreed. 

In this final offer selection process, the parties exchanged and provided the arbitrator with their final and best offer on all of the issues.  The parties then had 7 days to decide whether to accept the other’s offer. No offer was accepted, so the arbitrator held a brief oral hearing to enable the parties to make submissions. Following the hearing, the arbitrator selected the better offer, provided short reasons for why he did so and made an award in terms of that offer.  Under “final offer selection” there is no jurisdiction to make an award incorporating features of both offers nor is there any ability for the arbitrator to incorporate any of his own terms.  It is all or nothing – husband or wife’s offer in its entirety. 

Ultimately, the arbitrator chose the wife’s offer as the better offer.  The award followed her offer, along with brief reasons.  The husband was unhappy and appealed the arbitrator’s decision, claiming:

i)                    final offer selection was ill-suited to resolve multiple issue cases;

ii)                   the process did not include an opportunity to provide either sworn testimony or a right of cross-examination; and

iii)                 the arbitrator’s reasons were inadequate.

The court upheld the “final offer selection” process.  Both parties had agreed to it, both availed themselves of legal representation and each had an opportunity to provide written submissions and to respond to the other party’s written submissions. The court determined that “final offer selection” is not a process which, in itself, is contrary to law, even where there are multiple issues to be resolved.  The husband was barred from complaining about a process which was adopted with his full knowledge and consent, particularly since the arbitrator had given both parties the ability (which they rejected) to modify the final offer selection process.     

The Agreement provided the arbitration process was to be “similar to court procedure where possible…” The court held that “similar” does not mean identical or “the same as”. Instead, flexibility is codified in the Arbitration Act, which allows an arbitrator to determine procedure provided that procedure is fair and treats the parties equally. Procedural fairness demands that each party have the opportunity to present his or her case and to respond to the case of the other.  This does not necessarily mean an oral hearing is required.  Rather, one of main benefits of arbitration is the ability to craft an efficient and cost-effective process tailored to the parties and the case at hand and, thus, an oral hearing is not always called for.  In this case, the parties knowingly chose the baseball style process for themselves, following legal advice and a clear articulation of the pros and cons of same.  The court held that this was not a case of parties attempting to confer legitimacy on an unfair process.  Instead, it was a fair process willingly and knowingly crafted by and entered into by the parties, to which result the husband was bound.  Glad the court in this case did what I think a major league umpire would have done in the circumstances: despite having cried foul, the husband should be made to “PLAY BALL”!

January 8, 2013
by Sarah
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A Modest Proposal

Litigants without lawyers abound in Ontario’s family courts today.  Their presence has grown from the exceptional to a normal and significant portion of those cases which our courts decide. Many of those separating spouses who do not have lawyers are without the financial means to retain counsel. Legal Aid coverage has income eligibility caps set at a level that exclude the middle class and much of the working poor.  That is not the whole story, however. It is increasingly common for individuals who do have the financial ability to hire a lawyer to act on their own because they do not see the benefit of having a lawyer and, in the internet age it seems feasible to figure out the rules and legal principles without going to the significant expense of retaining counsel.  No one is required to hire a lawyer and in theory the court system is accessible to “self-represented litigants” as we call them. That very name indicates the nub of the problem. Rather than having a system that is truly accessible we have one that is designed for represented parties. The reality is that it can be perilous to a litigant to “self-represent.”

 

Our legal system and processes are designed to run efficiently in the common law tradition. The goal is for cases to be presented to the court by two opposing parties who because they are opposite in interest will, presumably, gather all the necessary information and test it before the judge. To ensure that the process is fair numerous elaborate rules of evidence and process have been developed. These are complicated enough that many trained lawyers trip up in their application. Untrained litigants tend to crash through them without even realizing it. Aside from the procedural hurdles that an unrepresented party must overcome, there is the more fundamental problem of learning and understanding the relevant legal principles. In Ontario we have chosen a very sophisticated and, on the whole, fair legal regime for deciding how to care for children and divide up assets and income after a relationship breakdown. It takes years of legal education and practical training for family lawyers to understand the system. Few unrepresented parties ever figure out exactly how it works which presents a huge stumbling block to putting together a case.

 

In Ontario great efforts to foster accessibility to the system are underway. The Ministry of the Attorney General has a well designed website. There are information centres at the family law courts and increasingly free or subsidized mediation services. All this helps, but it is not enough. The courts are still overwhelmed by the self-represented. Where both parties are self-represented they turn to the judge to seek advice and assistance which is completely antithetical to our system. Our judges are not permitted to provide legal advice to litigants. Where only one party has a lawyer the temptation is to put the greater procedural requirements on that party which inequitably adds to the represented party’s expense. The party with the lawyer may be the one expected to prepare and organize briefs, as well as to prepare support calculations and equalization calculations. Inevitably when there is an unrepresented party there are more court appearances and longer appearances. This adds to the cost for the represented party and adds to the costs and delays of all litigants in the system. Even those cases where both parties are represented are affected as they suffer from the delays and demands on the system caused by those without lawyers. I do not believe that more information sessions, better web sites or additional mediation services can solve this problem.

 

I have a modest proposal that could solve the problem for private family law disputes. It is to abandon our common law traditions and adopt instead a court process with investigative active judges at the centre. In this model a judge, who does have the expertise in substantive and procedural family law, will do what the parties actually want and need, which is investigate their circumstances and apply the law to adjudicate their cases. I envisage this as a court system in which there are no represented parties. No one would have a lawyer. The litigants would deal directly with the judge appointed to their case.  The judge would be supported by a staff of family lawyers, paralegals, social workers and accountants who would assist in the task of investigating the relevant facts and circumstances.  This process could be funded by user fees to be set at a level that would be cheaper than paying a private lawyer in an adversarial system. The user fees could be waived for those under a fixed annual income, say $40,000/year.

 

Private family lawyers would continue to advise clients and assist in negotiating settlements outside of court. For those who wished, they could participate in private mediations and arbitrations.  The free and subsidized mediation services in courts would also continue to be of value.

 

Of course, the political will to achieve such a dramatic reform is almost unimaginable but perhaps, just perhaps, the current state of the family law system will open the door to change.

November 20, 2012
by Jennifer Samara Shuber
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Would Ronald’s real spouse please stand up?

Carrigan v Carrigan Estate is a recent Ontario Court of Appeal case grabbing headlines.  For family lawyers, the case underscores the importance of the domestic contracts, particularly the Separation Agreements, over whose drafting we toil.  For the general public, the Courts’ recognition that a person could, in certain circumstances, have more than one spouse is what is of interest.  Let’s have a look at both.

 The case pitted the late Ronald Carrigan’s legal spouse against his live-in common spouse over receipt of the pension benefits which would accrue to Ronald’s SPOUSE upon his death. Ronald and his spouse Mary separated in 2000 but they never divorced, nor did they enter into a Separation Agreement to formalize arrangements between them.  Ronald started a relationship with Jennifer Quinn and he and Jennifer were living together in a common law relationship when Ronald died in 2008.  Up until his death, Ronald was still paying Mary’s expenses and some of the costs of their two daughters. 

In 2002, after separating from Mary and while already living with Jennifer (see where this is going?), Ronald designated Mary and their two daughters as the beneficiaries of his pension.  When Ronald died, both Mary -the woman he married – and Jennifer – his common law spouse – claimed to be entitled to the survivor pension benefits.

Jennifer’s case succeeded at trial.  The Court held that both Mary and Jennifer qualified as Ronald’s “spouses” under the Pension Benefits Act of Ontario but Jennifer, who was living with Ronald at the time of his death, was entitled to the benefits.  The fact of Jennifer and Ronald living together trumped Mary’s claim as a separated spouse. 

Mary appealed the decision and won.  A three member panel of the Ontario Court of Appeal overturned the trial judge.  Mary and her daughters were granted the survivor pension benefits.  The majority in the Court of Appeal accepted the trial judge’s finding that Ronald had two spouses when he died.  However, through rather convoluted analysis, the Court held that entitlement to the pension benefits was not determined on the basis of who was Ronald’s spouse on the date of his death. Rather, the Court held that it was the 2002 beneficiary designation, which Ronald made in 2002 well after his separation from Mary, which represented his true intentions. 

This decision provides a warning to those who fail to change their beneficiary designations after entering into new relationships since Mary’s beneficiary designation ultimately trumped Jennifer’s common law status   The case also stresses the importance of having a detailed, written, and signed Separation Agreement that sets out all of the separated spouses’ present and future entitlements, as well as the need for a properly drafted Will. Hopefully, the case will serve as a wake-up call to the many individuals who entered into a new relationship without officially ending the old one, as is quite frequent in this modern age of serial monogamy.   Formalize the end of the first relationship in a Separation Agreement.  Structure the second with a domestic contact.  Your intentions will be respected upon death and litigation like that in the Carrigan case will be avoided.   

 

November 9, 2012
by Sarah
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Why Mediate?

Good communication is the foundation of a good divorce. If a separated couple can communicate effectively they will be able to parent their children well and likely resolve all their financial issues. The obvious problem is that poor communication is the cause of much relationship breakdown in the first place. If a couple are unable to deal with each other directly in a constructive manner then one option is to work through their lawyers. How effective that is depends on the lawyers’ ability to clearly convey their clients’ views to one another and hear the other’s point of view. Despite the fact that legal training largely tends to overlook these soft skills many legal professional are capable of doing this. That said, some lawyers still fall into the category of those who transmit but don’t receive. Even if the lawyers are skilled at communication it is all at one remove from the clients raising the risk of misunderstandings and frustrating delays. A message delivered on Friday may be timely and avert conflict. If the lawyer happens to be away from her desk that day, the same message delivered on Monday may arrive after the conflict has erupted. In any case, many people cannot afford lawyers and, if they can, are limited in the financial resources available for legal fees. Mediation is one route to solving communication problems and, with that, the dispute.

Mediation is available for all types of family law dispute, whether parenting or financial. There are many mediators from different disciplines and with different skill sets. Social workers, psychologists, faith based counsellors, lawyers and paralegals. There can be a real disparity in training and ability of those advertising themselves as mediators and it is essential to research the choice of mediator well. Referrals from a trusted and knowledgeable source are the best approach to finding a good mediator. A couple need to find the right mediator for their dispute. Not all lawyer- mediators have the sensitivity to mediate parenting issues while non-lawyer mediators may not have sufficient familiarity with financial questions of support or property rights to be able to guide a couple to a fair resolution.

Mediation is a flexible process with more than one model. Separating spouses may meet with a mediator on their own or with their lawyers present. In a more complicated financial case the parties might bring along their financial advisers, accountants or business valuators. Ideally, mediation takes place in one room with all the parties working together. In a high conflict situation, it may work better if the spouses remain in separate rooms and do not interact directly, leaving the mediator to conduct shuttle diplomacy. Mediator styles also vary tremendously. Some mediators see their role as facilitators of a settlement while others have a more interventionist style. Ideally, whatever the style, the mediator will provide guidance, creative solutions and help the parties to reach a deal of their own making, rather than one imposed by a court or arbitrator.

Once a settlement is reached and incorporated into a contract, the spouses should still get independent legal advice on the deal from their respective lawyers to ensure that they understand the contract. At that stage there is a risk that a mediated settlement will fall apart if it is unbalanced or too far removed from the parties’ rights and responsibilities. The more skilled and knowledgeable the mediator, the less likely this is to happen.

In Ontario, mediation is currently voluntary for separating spouses.  The concept of mandatory mediation has attracted some attention and support but it has not yet been imposed on families. Whether the benefits of mediation would be the same for spouses who are compelled to enter into the process is debatable. A recent reform that is bearing fruit is the expansion of access to free or reduced cost on-site mediation at Ontario family law courts. Early mediation is usually the most cost-effective but it is an approach worth considering whether early on or at the court door.