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Posts from the ‘Divorce FAQs & Education Resources’ Category

Saving the Golden Goose: Part II – Including Specialized Professions as An Alternative Option to the Traditional Court System

Saving the Golden Goose: Part II – Including Specialized Professions as An Alternative Option to the Traditional Court System

As mentioned in our previous blog Saving the Golden Goose: Part I, a court process allows for only a rights based determination of the issues at hand. However, there are many intricacies involved in the enmeshment of family business and the process of separation and divorce. As an alternative to a purely rights based approach, other options can be considered in the collaborative approach, including:

  • Family trusts or holding companies as a method of sharing income from the family business
  • Tax planning, avoiding the possibility of triggering a Canada Revenue Agency audit
  • Considering the formation of a new family trust
  • Employment of children in the family business
  • Estate, succession, and capacity planning
  • Ensuring insurance is in place to cushion the effects of any risks
  • Gifting shares or portions of the family business to children or other family members
  • Maintaining the privacy of the family business
  • Managing the continuation of income streams
  • Splitting income amongst family members
  • Delaying equalization or sharing business payments (Ie: if and when the family business sells)
  • Preserving the family legacy for generations
  • Recognizing and predicting the ebb and flow of the market and business patterns

Unlike the court system, the collaborative process is unique in that it offers the additional benefit of involving neutral professionals who specialize in associated areas, listed above. These neutrals are able to address relevant areas of the family law matter, often with more experience in their particular field than lawyers. Neutrals are also able to complete work at their hourly rate, rather than at the lawyer’s fee. They are also able to take on some of the information gathering that would alternatively be completed by the spouses, which can be stressful. This makes including neutrals an efficient way to deal with issues in a cost effective manner.

Financial Professionals

Collaborative Financial Specialists may be accountants, financial planners, and business valuators who have expertise in helping separating families address issues relating to the family business. They play a vital role in the collaborative process by ensuring that clients provide full and frank financial disclosure. Financial disclosure includes aspects such as income, liabilities, and assets of both the spouses and the business. A business valuator may value the business and, as in the case of many self employed individuals, complete an income analysis to determine yearly income for support purposes. In the collaborative process, family business owners can work alongside the financial professional and/or business valuator to assist them in understanding the intricacies of the business based on its unique field.

Financial Specialists thoroughly vet the documents and prepare detailed reports which help to streamline settlement discussions. Financial Specialists further add value to the collaborative process by educating clients about their finances and helping to manage their expectations from a neutral perspective. This impartial stance helps to keep client expectations realistic, making negotiated settlement more likely.

Another key benefit of financial professionals is their ability to “even the playing field”. In some family matters, one spouse may have been much more involved in the finances of the family business. The other spouse may feel they are ill equipped to negotiate the finances associated with the business, and may worry about being taken advantage of by their spouse. A financial neutral can spend time separately with both parties to ensure that all the cards are on the table, and that each spouse understands the basis upon which they are negotiating.

Family Professionals

While it may not immediately seem to be a common sense approach to include a family professional within the context of a family business matter, family professionals can often deal with may of the underlying issues associated with restructuring a family and a family business. Emotions can run additionally high when dealing with the very real and salient issues associated with the individuals which make up a family business team.

Much of the concept of “Interest Based Negotiation” centers on interests that are not purely financial. A family professional can assist in identifying and bringing these interests to the table. Anger, loss and grief are a natural part of divorce or separation, especially when a family’s livelihood is on the line. A family neutral gives families access to support and guidance for managing these emotions which can intensify the conflict and derail settlement attempts in traditional divorce.

Collaborative Family Professionals are counselors, social workers, psychologists or mediators who have specialized skills in handling the emotional aspects of the issues pertaining to separation and divorce. They further discuss parenting, and help ensure that feelings, needs, and concerns are understood and respected where children concerned. This is especially pertinent when there are children working within a family business, who have their own independent concerns about how the divorce will affect their future within the business context.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

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Is It Your New Year’s Resolution to Get a Divorce?

Is It Your New Year’s Resolution to Get a Divorce?

In a piece recently reported by the CBC News, and well as a post from Huffington Post Canada it seems that January is the prime time of year for couples to initiate divorce, based on the number of court-filed applications. According to another article in the U.S. divorce filings begin to spike in January, and peak in February and March.   January is when divorce lawyers report seeing a spike in consultations from disgruntled husbands and wives, who at least want to do some information-gathering, by exploring the various financial and child-related repercussions that a formal separation or divorce would entail. After that, according to the article, many who are willing to commit to a split will return in February or March to get the ball rolling. Similar trends have been reported in other articles.

So what’s behind the trend? Apparently, those in troubled partnerships will try to keep the status quo throughout the holidays – especially if children are involved – only to formally separate or embark on marital counselling once the festivities are over. The reason for this timing is largely (shall we say) “sentimental”: People don’t want to initiate divorce proceedings immediately before, or during, the holidays. They may not want to put a pall over what is ideally supposed to be a family-oriented, idyllic season of the year.   Or, they may want to delay so that the family can have one final holiday together, before they split.

For others – especially those individuals who have already started to secretly contemplate divorce, or for those embattled couples who have begun to discuss the prospect between themselves – the “fresh start” quality of New Year, and the tradition of making resolutions, may prompt unhappy partners to re-evaluate their future and finally make the break they have been contemplating.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Saving the Golden Goose: Part I – How Family Run Businesses can Survive and Thrive after Divorce

Saving the Golden Goose: Part I – How Family Run Businesses can Survive and Thrive after Divorce

One of the common fears of clients who own family run businesses is how a divorce will affect the business they have spent their life building. While business owners have control over the work they put into their business and the legacy they are building for their family, they may have little influence over a relationship breakdown. The worry in regards to the effects of this breakdown on a business can cause additional stress above and beyond the heartache associated with restructuring a family.

In many family law matters involving children, the spouses are able to agree to cooperate in order to address the best interests of the children. In many ways, a family business can be used as a similar incentive: spouses can agree to cooperate in order to address the best interests of the family business. While fueling conflict is an almost unavoidable side effect of the court system, a collaborative approach is a very effective method in reducing the impact of separation and divorce on family run businesses. This process seeks to ensure that the business remains viable for both spouses, as well as future generations.

What is Collaborative Practice?

Collaborative Practice Family Law offers an effective alternative to the inherently adversarial court process. Both parties must enter into the process voluntarily, and agree to resolve their issues respectfully. While the court process is oriented based on the legal rights and obligations of both parties, the collaborative process allows both parties to generate options that best suit their family. This allows the family much more self determination in creating an outcome based on their specific needs. Specially training collaborative lawyers work with both parties to guide them through the process, and are available to offer legal advice and support to their clients when appropriate.

Both parties’ lawyers also commit themselves to coming to a mutually agreeable resolution. The parties must agree in advance that should the collaborative process fail, neither party may use their collaborative lawyer to advance their position in court. This creates an environment conducive to negotiation and settlement, outside of court.

The underlying philosophy of the collaborative divorce process is that the parties mutually agree to completely avoid the court process, with the result being a faster, cheaper and more amicable divorce or separation.

A Flexible Alternative to Court

As mentioned above, the collaborative process allows spouses to shape the outcome of their separation and divorce. In contrast, judges in the court system have limited statutory options available them when presented with these disputes. Their analysis is built upon a determination of the legal rights and obligations of the parties under the Family Law Act. Furthermore, family law judges may struggle to understand the time and effort that goes into building and running a business, and the concept that income is not necessarily guaranteed or consistent. Issues such as liquidity of assets, the risks associated with owning a business, and ensuring that funding remains stable are complex, and family judges are not necessarily trained to analyze these concepts. Due to these restrictions, often a court process will result in the sale of business at a significant discount, which ultimately results in a significant loss of family wealth.

Collaborative family law is an option that operates outside of the court system. It allows the spouses much more privacy than a court process does, which a huge additional benefit to those owning family businesses. Issues such as tax planning or corporate share transfers can be done with reduced publicity. Both spouses are able to sit down with one another, and their lawyers, to discuss a solution that is beneficial to both the business and the family unit. Spouses can determine whether or not it is a realistic option to continue to operate the business jointly, or if one should step down. In the latter situation, flexible payment structures can be created to ensure that the business is not destroyed in the wake of one spouse leaving. This fosters the health of the family business, and promotes growth and stability for future income and the building of capital which ultimately supports the family.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Part II

Part III

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Russell Alexander, Family Lawyers


At Russell Alexander Family Lawyers, we are committed to practicing exclusively in the area of family law. As a result, our team is experienced in dealing with all aspects of family law matters, including:

  • Separation and divorce Child custody and access
  • Child support Spousal support
  • The Family Responsibility Office (FRO)
  • Division of family property
  • Family mediation and alternative forms of dispute resolution
  • Domestic contracts, including separation agreements, paternity agreements and marriage contracts

Because our work is focused solely on family law, we understand the difficulties individuals face when going through a separation or divorce. We understand that family law can be very complex, and that its complexity can be amplified when coupled with emotionally straining circumstances.

Our office will help you by providing you with guidance during what can be a very difficult time in your life. This means providing you with the information to help you to identify and understand the issues, as well as the options and opportunities available to you to help in this transition. It means working with you to design a plan to help you make progress and achieve your goals. We will keep you informed about matters as they arise and discuss with you any significant decisions that you are required to make. We will provide you with our best legal advice, but ultimately you will make the final decisions and provide us with instructions.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

The Law Society of Ontario has just announced its approval-in-principle of a joint action plan that is the culmination of a Family Legal Services Review commissioned last year in conjunction with the Ministry of the Attorney General.  The resulting Report makes 21 recommendations that are aimed at improving access to Family Law legal services, most notably by expanding the role of paralegals. Under the joint action plan being considered, the Law Society commits to the following:

  • To develop a license for licensed paralegals and others with appropriate training, to allow them to offer some Family Law legal services. The licence will support training on the topics of: legal process; completing Family Law forms, investigating certain financial information, Motions to Change, and uncontested divorces.  The Law Society indicates that training will be an intensive and rigorous process, of up to 14 months’ duration, along with testing.
  • To “engage in a robust evaluation of the success of the Family Law legal services license for service providers other than lawyers, and to make any adjustments that are in the public interest.”
  • To consider allowing lawyer candidates (e. articling students) to be given “experiential training” in the licensing process, including how they may support the delivery of Family Law legal services under appropriate supervision.
  • To review the Rules of Professional Conduct governing lawyers and paralegals, to see whether the current rules on the unauthorized practice of law are as clear as possible on the difference between legal information that is legal advice, versus legal information that might be provided by Court staff to unrepresented litigants. The intent is to effect a common-sense change to give Court staff more latitude to help self-represented litigants navigate the Family Law process.
  • To continue to support the expanded use of unbundled services and legal coaching, including offering Continuing Legal Education opportunities, as well as tools that address concerns over legal liability.

The Law Society indicates that it will also continue to assess what additional Family Law legal services (including advocacy in and out of the courtroom) should be made available by providers other than lawyers.   This again requires consideration of the public interest.

It should be noted as background to this newly-announced initiative, that the Law Society has also ramped up its lobbying efforts, in cooperation with the Bar, to encourage the Federal and Provincial governments to accelerate the implementation of Unified Family Courts to all jurisdiction in Ontario.  (Currently, there are only 17 Unified Family Courts are only available to litigants in the province, mostly in the greater Toronto region).

What are your thoughts on this new action plan?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

If Only One Person Says “It’s Over”, Is It Really?

If Only One Person Says “It’s Over”, Is It Really?

Who gets to decide when a marriage or other relationship is over? Do both parties have to agree, in the eyes of the law?

That was one of the questions that the court had to ask in a case called Cammaroto Cammaroto.

The facts were a little unusual: The wife wanted out of the dead-end marriage but could not get the husband to leave, likely because he was very comfortable having her pay all the bills. He had never really worked throughout their 10-year marriage, and had not shown any real inclination to get a job. As the court described it:

[The wife] testified that she was trapped in the relationship for many years because she could not get [the husband] to leave and she could not afford to carry two residences making her (in her words) “a prisoner” in the matrimonial home.

The true end-date of the marriage was therefore challenging to pinpoint, and the spouses differed greatly on what that date actually was.

Naturally in a more typical marriage-breakdown scenario, the former partners usually decide to stop living together at some point, making it much easier to isolate the date the relationship has officially ended.   But where – as here – the couple continues to live under the same roof even after one or both of them consider the relationship to be over, the lines can get a little blurry.   It becomes harder to identify the true legal “separation date”.

To frame its determination on this issue, the court stated the law:

Marital relationships cover a broad spectrum and it is difficult to pinpoint when spouses become “separated” while under the same roof. There is no checklist or test that precisely articulates the determination of a valuation date in a case such as this, though courts have articulated factors to consider. It is a fact-driven inquiry in any particular case.

The absence of sexual relations is a factor but it is not conclusive. The degree to which spouses share or segregate income and expenses is important, particularly changes in those arrangements. Communication, social life, interactions with one another in public and behind closed doors all need to be considered. Mutual goals and expectations are relevant. The goal under the Family Law Act‘s property provision is to fix a date on which the economic partnership should as a matter of fairness be terminated. The global question is when it was that the parties knew, or reasonably ought to have known, their spousal relationship was over and would not resume.

On the question of whether one person can unilaterally decide that the marriage is over, the court was unequivocal:

Continuation of a marital relationship requires two people. Either spouse can unilaterally end that relationship without the consent of the other. There are many cases where one spouse knows there will be no reconciliation, but the other may not know. At the same time, the court must be careful to look for some objective evidence upon which to find a date of separation, rather than simply accepting the after-the-fact statements of the party who has decided the relationship is over.

Applying this test to the specific facts in Cammarato, the court found that the relationship had ended a full five years before the couple stopped living together. The court described the marital scene:

By 2005, they ceased to have a sexual or otherwise intimate relationship. Communication between them was largely by notes to one another. They had no social life to speak of. [The husband] had no friends and as a couple they had no mutual friends. Moreover, he objected to and interfered with [the wife’s] association with her own friends and even with her two sons. They had a joint bank account but only [the wife] was putting money into this account after 2006. [The wife’s] description of their relationship is corroborated in some respects by [her doctor’s] notes and the records of the police interventions.

In these circumstances, the court found the marriage was over long before the spouses moved out and went their separate ways. It set the separation date accordingly, for valuing the spouses’ respective assets for equalization.

For the full text of the decision, see:

Cammaroto v Cammaroto, 2015 ONSC 3968 (CanLII)

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Wednesday’s Video Clip: When Can A Parent Apply For Child Support

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

In this video we discuss how parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible. Sometimes parents with custody do not want or need child support at first, but later their situation changes.

They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled. But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended. A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Would You Give Your Ex Your Facebook Password?

Would You Give Your Ex Your Facebook Password?

Perhaps it’s human nature, but most people who go through a marital separation or divorce will do their best to limit the information that their now-former spouses are privy to, when it comes to their post-split personal lives. In fact, common relationship and break-up advice suggests that former spouses should actively and immediately “block” each other from social media sites like Facebook, so that neither can have glimpse at what the other is doing after the split.

Part of it arises from privacy concerns, but part of it may arise from a sense of protectiveness around giving the other person “dirt” that they can use in any Family proceedings that are later sparked by the breakdown of the relationship.

As I have written numerous times in the past, when former spouses are embroiled in litigation to untangle their financial affairs, and to deal with the custody of and access to any children, their respective posts on Facebook can inadvertently become the source of evidence.

So it may come as a surprise that a few years ago a judge in Connecticut ordered a former couple to divulge their Facebook, eHarmony and Match.com passwords to each other during their divorce proceedings. The judge had granted the order based on the husband’s evidence that the wife’s Facebook posts and photos raised issues about her ability to care for their children.   When the wife relinquished her password but then arranged for a friend to start deleting any incriminating posts, the judge added an injunction to prevent her from doing so.

The judge’s order also enjoined either spouse from “visit[ing] the website of the other’s social network and posting messages purporting to be the other.”

It’s an unusual ruling, and one that will give many people pause:

Would you really want a former romantic partner to have access to your Facebook or dating site passwords?

What are your thoughts?

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Wednesday’s Video Clip: Child Support & Parents on Social Assistance


Wednesday’s Video Clip: Child Support & Parents on Social Assistance

Parents on social assistance who have custody of their children must make reasonable efforts to get support from the other parent. If they do not, they may receive less assistance, or none at all. If they do not already have a support agreement or order, they are expected to get one. They must give information about the other parent to a family support worker who can help them get a support agreement or order.

They should get legal advice before signing any agreement worked out on their behalf.

They may not have to try to get support if the other parent:

• has a history of violence towards them or their child

• cannot be found (but they must give their worker any information they have that might help find the other parent),

• or is not working and cannot afford to pay support (if he or she starts working again, then support can be re-ordered).

The amount of any child support they receive is deducted from their social assistance. So, their total income does not change because of the child support.

Usually, the payments go directly to them, and that same amount is deducted from their monthly social assistance cheque. But if there is a history of non-payment, the child support payments can be assigned to Ontario Works (OW) or the Ontario Disability Support Program (ODSP). Then they will get their whole social assistance cheque, even when the support payments are not paid.

Parents on social assistance who do not have custody are expected to pay child support to the extent that they can, as set out in the Child Support Guidelines. Currently, the Guidelines do not require support payments from parents whose income is less than about $6,700 a year.

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Can the Court Decide to Hear New Evidence After-the-Fact?

Can the Court Decide to Hear New Evidence After-the-Fact?

A recent Ontario decision raises the interesting procedural issue of whether a court has the authority to admit new evidence even after it has concluded hearing a Family Law matter.

The litigation involved competing motions by a father and a daughter. The daughter asked for the court to order the father to pay temporary child support, and the father resisted, asking the court for certain orders to be made in his favour instead. The court heard the motions, but reserved judgment on both.

Then, a week later, the father returned to court to try and provide new evidence that the company he controlled had been ordered into receivership – presumably to show that he could not afford to pay the daughter temporary support she sought. His evidence took the form of the copy of an order by another judge, in another court, simply declaring the father’s company was receivership; there was no other detail provided.

The court first had to consider the broader legal question whether it had the authority to allow the father to bring new evidence, even after the original motions had been heard. If so, then the court was still obliged to consider whether that authority should be exercised respecting the father’s new evidence in this particular case.

On that last point, the court summarized the task at hand:

The deeper issue that I am called upon to consider is whether [the father] has provided sufficient evidence to show that the motions should be reopened, and if so, on what terms?

After reviewing basic judicial principles, the court ultimately found that it did have the authority to re-open the argument, but that the father had not met the test to justify the court doing so in this case.

The court’s threshold determination was whether it had fulfilled its official function on the earlier motions; if so, the door was closed for any further evidence to be received. The legal term is “functus officio”, which is defined as “having discharged one’s duty” or as “a task performed.”

As it happened, in this case the judge had not yet issued a ruling, let alone granted any order that had formally been entered with the court. So the judge was not “functus officio” in this particular instance.

Next, the court also examined the Family Law Rules, to see whether it might prohibit the father’s evidence from being tendered at this relatively late stage. The purpose of the Rules, the court found, was to deal with cases in a just and fair manner; they included provisions specifically built-in allowing for flexibility and fairness. In the right circumstances, the Rules did allow further evidence to be filed even after the argument of the motion had been concluded.

With that said, the judge’s discretion was to be exercised “sparingly and with the greatest care”, although a “somewhat relaxed approach” could be applied in cases where the matter had been heard, but a decision had not yet been released. This was one of those cases.

Still, the admission of evidence was to be the exception, rather than the rule. Otherwise, it would be tantamount to inviting the parties to first hear argument and judicial comment on the evidence thus far, and then put together further evidence tailored to buttress their case.

In this case the father had not met the requisite test. As the court said:

While the test is more relaxed than it would be after a decision had been released the admission of that evidence is far from automatic. Here [the father] fails to meet even a relaxed test for admission.

The father had neither direct evidence nor any submissions to explain why the late-breaking receivership order, relating to a company that he held a 60% interest in, might affect either of the motions the court had already heard. He merely proffered a copy of a prior court order putting his company into receivership, but without explaining how it might affect his income.

The court said:

While the bar … is a low one, [the father’s] materials fail to clear even it.

The court declined to grant the order, and dismissed the father’s motion to introduce new evidence.

For the full text of the decision, see:

Glegg v. Glegg, 2017 ONCJ 102 (CanLII)

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com