Skip to content

Learn more about Ontario Divorce.

Ontario Divorce
Ontario Divorce
Child Support
Child Support
Child Custody
Child Custody
Property Division
Property Division
Spousal Support
Spousal Support
Collaborative Divorce
Collaborative Divorce
Separation Agreements
Separation Agreements
Adultery
Adultery
Passports
Passports
Tax Implications of Divorce
Tax Implications of Divorce
Spousal Spying
Spousal Spying
Selling the Home
Selling the Home
Ontario Divorce Help FAQ
Ontario Divorce Help FAQ
Domestic Violence
Domestic Violence
Changing the Locks
Changing the Locks
Texting & Divorce
Texting & Divorce
YouTube
YouTube
Our Story
Our Story

Judges Speak Out About Self-Represented Litigants

loud

Judges Speak Out About Self-Represented Litigants

As family lawyers, we are well-aware of the common criticism by those involved in family disputes and litigation: that hiring a lawyer is expensive.

Although it may seem self-serving to point out the benefits of retaining experienced family law representation for your case, we can do one better: Here are some illustrations of the types of comments made by judges themselves about the difficulties of untangling the merits of a case when self-represented (or otherwise unrepresented) litigants – admirably as they may try – are unable to put forward their best case due to the lack of legal training.

For example, in a case called Leigh v. Milne, the Court of Appeal lamented the slow pace at which the family litigation had proceeded:

The Process

At the outset, let me address [the wife’s] concern about the process, culminating in the order under appeal. This proceeding on appeal is a graphic example of how difficult it is for a self-represented litigant to effectively navigate through the legal system. While the Courts struggle to adapt to the ever-increasing numbers of self-represented litigants, the legal system remains a process which works most effectively for litigants who are represented by lawyers. Judges expect that lawyers will police one another in order to keep a case moving forward at an acceptable pace and, when necessary, seek the assistance of the court to do so. Unfortunately, this leaves proceedings where one and, especially, where both of the litigants are unrepresented, susceptible to being unreasonably delayed by the party who does not want the matter to proceed. This is what occurred here.

In the recent Ontario decision called Szakacs v. Clarke, the court complained about the quality of court documents that had been filed in connection with a family case:

In self-represented litigation, the “pleadings” rarely reflect meaningful details of the issues to be tried. In this case, after reviewing the various orders in the trial record, I ventured further and read the notices of motion and the supporting affidavits leading to those orders for the purpose of learning the specifics of the dispute. This allowed me, when the parties were testifying, to raise certain matters that they had omitted or had wrongly concluded were unimportant. A trial judge should not be put in the position of having to find, present, argue and decide a case. Wearing that number of hats is unbecoming.

Finally, courts are mindful of the potential unfairness to the other side. While being willing to recognize that – out of a sense of judicial and procedural fairness – a self-represented litigant should perhaps be given a little more lee-way in connection with having to follow court rules and procedures to the letter, the court must still ensure that both sides of a family dispute get the fair hearing to which they are entitled. This was pointed out in a case called Baziuk v. Dunwoody, where the court said:

The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.

The point to take away from this, is that the decision to represent yourself in your family dispute may seem cheaper financially, but may have hidden costs in connection with the judge’s own perception and assessment of the merits. Make sure you make the right decision for your particular case.

For the full text of the decisions, see:

Leigh v. Milne, 2010 NSCA 36

Szakacs v. Clarke, 2014 ONSC 7487

Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156; [1997] O.J. No. 2374 (QL) (Ont. C.J. (Gen. Div.)

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 www.RussellAlexander.com.

Top 5 questions about spousal support in Ontario, Canada – video

 
Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support — which is sometimes called “maintenance” or (especially in the U.S.) “alimony” — is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship.

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

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 www.RussellAlexander.com.

Another Classic Family Judgment by Justice Quinn

gavel

Another Classic Family Judgment by Justice Quinn

We have written before about the unique and often-entertaining Family Law judgments of Justice J.W. Quinn, who hears cases in St. Catherines, Ontario. Although those judgments are not that frequent, when they do come down the judicial-ruling “pipes”, they are certainly worth the wait.

The latest, a decision called Szakacs v. Clark, is no exception. It involved a bitter custody dispute fought with great vitriol by two self-represented parents. Justice Quinn begins his ruling this way:

For best courtroom adaptation of a work of fiction, the award goes to the [mother], who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the re-spondent to their almost-six-year-old daughter.

One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. She effortlessly put the “rage” in “outrageous,” …

At several points throughout the trial, Ms. [mother] emphasized that she was a Christian who practiced Christian values. There must be some key pages missing from her copy of the Bible.

Justice Quinn then recounted the background facts relating to the mother, who had several short relationships and what the judge called a “lacklustre employment history” culminating in her current state of unemployment which persisted despite the child’s full-day attendance in kindergarten. He described that she met the child’s father online, and became pregnant at their first offline meeting. Among the many unflattering assessments he calls her “argumentative, flippant, acerbic, and sarcastic”, and then wonders aloud: “If she is like this in court, what must she be like outside the courtroom?”

The father, in contrast, appeared to Justice Quinn to be a soft-spoken, “impressive witness” with a stable family background who displayed signs of parental maturity.

But despite what may be some early editorializing in his judgment, Justice Quinn did eventually turn to a more substantive, and legally-based assessment of the overall merits of the case. For example, in ordering that joint custody would be in the child’s best interests, Justice Quinn reflected on whether – despite early indications to the contrary – the parents were likely to co-operate with each other. He wrote:

It cannot be said that the parties lack the ability to co-operate, because co-operation has hardly been tried. [The mother] to use a vernacularism, has called the shots from the beginning and [the father] has complied. [The mother] should not be rewarded for her arrogant and one-sided treatment of [the father]. Once [he] is given a voice (as I intend to do) an acceptable level of co-operation is more than feasible. Indeed, I think that [the father] will be an effective stabilizing force in what is now a non-benevolent dictatorship.

Of some importance is the fact that a joint custody order will prevent the efforts of [the mother] to limit and marginalize [the father’s] relationship with the child. [The father] has much to offer as a parent. …

Fortunately, [the father] has a bond with his daughter (despite the efforts of [the mother]) and it will grow stronger. She enjoys being with him and benefits from that relationship. Although [the mother] has shamefully manipulated the access regime to this point, no permanent harm to the father-daughter relationship has resulted. Had this litigation not occurred for a few more years (which seems to have been the agenda of [the mother]), I expect that there would be permanent harm and her goal achieved: fatherless parenting.

It’s another interesting judgment by Justice Quinn, written in his trademark unconventional style.

What are your thoughts about these decisions? Do you think this style of judgment-writing has a place in the Canadian family law system?

For the full text of the decision, see:

Szakacs v. Clarke, 2014 ONSC 7487

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 our main site.

5 Divorce Questions — Coast to Coast (Canadian Edition): Interview of Lawyer Harley Greenberg by Russell Alexander

MB-Canada-province

5 Divorce Questions — Coast to Coast (Canadian Edition):Interview of Lawyer Harley Greenberg by Russell Alexander

This week we interviewed Winnipeg, Manitoba lawyer Harley Greenberg.

Harley was called to the Bar in 1989 and practices with McRoberts Law Office LLP. Harley received his Bachelor of Science and Bachelor of Laws Degrees from the University of Manitoba and has appeared before all levels of court in Manitoba arguing many different matters. His practice continues to be general, with an emphasis on family law. He has extensive experience in family law, real estate and wills and estates.

Russell Alexander: “How often do people ask you for advice or guidance about separation and divorce and in which jurisdictions do you practice in?”

Harley Greenberg: “I meet with client’s on a variety of topics. My main area of expertise is family law and I meet with between 7 and 10 people per week seeking guidance in this area. I practice in Winnipeg, Manitoba.”

Russell Alexander: “What are the biggest concerns people raise with you about separation and divorce?”

Harley Greenberg: “By far the largest concerns people bring up with me is whether or not they are going to be able to keep their kids in the context of a dispute with their spouse.

The second largest concern people have is how their finances are going to be impacted by the separation, both in terms of how their assets will be impacted and also in terms of legal fees.”

Russell Alexander: “What advice do you have for people looking for a family lawyer?”

Harley Greenberg: “My advice is that people should be reasonable in terms of their expectations and demands. If you are looking for a family lawyer who is going to promise you the moon and the stars, you are probably going to end up disappointed. Be sure to find a lawyer who has some experience practicing family law, I think hiring an experienced lawyer is the number one criteria for a client’s success. Regardless of who you hire, in Manitoba we have a Case Management system which is set up to give client’s a taste of how their case will progress right away. Every client gets a preview of how their case might progress at a Case Conference with a judge who acts like a mediator and this lets the client get a glimpse of how their lawyer is going to perform. Look for a lawyer who is going to help you understand what you can reasonably expect to get from the courts, which is not the same as people initially expect.”

Russell Alexander: “What are the top 3 tips you have for people going through a divorce?”harley

Harley Greenberg:

1) Be prepared. Having organized paperwork will increase your chance of success and reduce your legal fees.

2) Be reasonable in terms of your expectations and listen to your lawyers advice.

3) Have candid discussions with your lawyer about the costs of legal fees and also about what you may end up owing to the other side right from the beginning.

Russell Alexander: “What do you envision for the future of family law?”

Harley Greenberg: “I believe that the future will have a lessor role for lawyers as technically becomes more and more prevalent in the industry. Each lawyer will be able to handle more client’s.

I envision a future with an ever increasing number of self-represented parties in the family courts as the cost of legal representation continues to increase. I hope that in order to combat these rising costs that there will be a greater number of sources available to help the lower-middle classes pay for legal representation. Right now there is a pilot program being run by the Manitoba Law Society which allows lawyers who are willing to charge a lower rate ($160/hr) to be paid directly by the law society to provide some assistance to low-mid income parties who do not qualify for legal aid. I envision a future in which this kind of program is expanded and available across Canada.”

“Oooh, baby, it’s so big!” – lawyer video

 

Wednesday’s Video Clip: “Oooh, baby, it’s so big!”

California lawyer Michael A. Fiumara has attracted attention and been criticized for his law firm video which has been described as “a racy advertisement”.  This video includes the lawyer talking to a sex doll while describing he services his firm provides.  The with phrases like “Oooh, baby, it’s so big!”.

Watch the video and provide us with your thoughts and comments.  Would you hire this lawyer?

Protecting your Inheritance: Lesson’s learned

Protecting assets

Protecting your Inheritance: Lesson’s learned

We recently came across Jeff Lander’s article Divorcing Women: Here’s How to Protect Your Inheritances and Gifts published in Forbes. Jeff provides some valuable insight into the lessons that can be learned for Americans from the divorce of Karen from her estranged husband, Gary before it’s too late for others to protect their inheritances.

The lesson’s provided in Jeff’s article can be applied similarly to Women in Ontario although the law is applied here in a slightly different way. One difference in Ontario is that instead of labeling property as “marital property” or “separate property” the Family Law Act simply looks at all of a party’s property at the date of marriage, and then excludes certain types of property from the final calculation. Jeff’s article is applicable because one of the types of property that can be excluded from the final calculation at the date of marriage is inheritances. This creates a similar result when considering inheritances as when Jeff uses marital vs. separate property.

Just like in America, in Ontario inheritances will only be excluded if they have not been “mixed” into martial property and can be easily traced. This means that like in Jeff’s article there are important financial planning considerations for any women receiving an inheritance in Ontario. The best solution for a party receiving a gift or inheritance is to simply keep the money involved in a separate investment account.

Jeff’s article also makes an interesting distinction between property distribution schemes in different states. In Ontario we use the term “net family property” which is calculated by looking at each party’s property at the date of separation and subtracting any property owned by that party at the date of marriage. The party with a larger net family property must make an “equalization payment” usually in cash but sometimes in property to the other party in order to equalize marital property. This scheme is much more similar to the community property distribution schemes described by Jeff then the equitable distribution schemes and as such it becomes clear why a party would want to exclude their inheritance from the net family property calculation.

Perhaps unsurprisingly, during their relationships most married couples are loath to even consider that they should take steps to protect themselves against their spouses. As a result it still remains a common problem in divorces that inheritances which were meant to be individual gifts ultimately end up as shared marital property.

To learn more about divorce in Ontario, contact Russell Alexander, Collaborative Family Lawyers. We focus exclusively on 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 our main site.

FamilyLLB Blog Named a Finalist in 2014 Clawbies Awards

2014 Canadian Law Blog Finalist 

FamilyLLB Blog Named a Finalist in 2014 Clawbies Awards

Russell Alexander Family Lawyers is thrilled to announce that our blog, FamilyLLB, was a finalist in the Fodden Award for Best Canadian Law Blog category of the 2014 Clawbies (Canadian Law Blog Awards).

After winning in the Best Practitioner Blogs category last year, it was a tremendous honour to be in the running for the top award, and very rewarding to have our blogging recognized.

Congratulations to Leonid Sirota, whose blog Double Aspect took the top honours, and to fellow finalists Karim Renno for his blog À bon droit, and McCarthy Tétrault LLP for their blog Canadian Appeals Monitor. We certainly were in good company with these and all the other Clawbies finalists and winners.

We have been blogging at FamilyLLB for over five years, on topics of interest to Ontario families going through separation, divorce, custody issues and other matters related to family law.

In December, our piece on the family law case Leung v. Shanks was named as a Top 10 most read post on the Canadian legal commentary site CanLII Connects.

Obligations to Pay Child Support Even with Undue Hardship — video

 

Wednesday’s Video Clip: Obligations to Pay Child Support Even with Undue Hardship

In this video Darla reviews a court decision from earlier this year, the court confirmed that a father was still obligated to pay support for his two children from a first marriage even though the child support obligation would cause him undue hardship, in light of his difficult financial circumstances.

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 www.RussellAlexander.com.

Our 5 Questions Series Returns!

ON-Canada-province

5 Divorce Questions — Coast to Coast (Canadian Edition): Interview of Lawyer Nafisa Nazarali by Russell Alexander

Back by popular demand is our 5 questions series where we interview lawyers on various aspects of family law.  This year we hope to take our series nation-wide asking family lawyers and practitioners in every Province and Territory their thoughts on this area of law that affects so many of us.

This week we interviewed Brooklin, Ontario lawyer Nafisa Nazarali. Nafisa is an associate lawyer at Russell Alexander Family Lawyers who practice in all areas of family law, including divorce, custody, access, child support, spousal support, separation agreements, marriage contracts, cohabitation agreements and property issues.

Russell Alexander: “How often do people ask you for advice or guidance about separation and divorce and in which jurisdictions do you practice in?”

Nafisa Nazarali: “As a family lawyer, people ask me for advice and guidance on a daily basis. There are numerous issues that can arise as a result of a breakdown in a relationship. I practice in the regional municipality of Durham, in the province of Ontario.”

Russell Alexander: “What are the biggest concerns people raise with you about separation and divorce?”

Nafisa Nazarali: “Without a doubt the biggest concern for people is ensuring that their children are protected during the separation. In many divorces, parents worry that they will not be able to see their children or that their relationship with their children will change because of the separation.

Finances are of course a concern for many people, but when it comes to money people are usually able to strike a deal. It is a lot harder to negotiate and make compromises when it comes to children.”

Russell Alexander: “What advice do you have for people looking for a family lawyer?”

Nafisa Nazarali: “It is very important to feel comfortable with the lawyer that you chose for your family law matter. Your relationship with your lawyer is built on trust. If you do not feel comfortable with your lawyer, you will not be able to discuss sensitive issues relating to the breakdown of your relationship.”

Russell Alexander: “What are the top 3 tips you have for people going through a divorce?”

Nafisa Nazarali:

1) Be reasonable in your expectations of what your lawyer can and cannot do for you

2) Be organized. Your lawyer will require many documents from you and the more organized you are, the easier it will be to fill out the necessary documents

3) Be honest. The last thing that your lawyer wants is to find out an important detail from the opposing party.

Russell Alexander: “What do you envision for the future of family law?”NN

Nafisa Nazarali: “I believe that alternative dispute resolution methods will become more common such as mediation and collaborative family law. The cost of legal representation in court continues to mount and it is becoming increasingly expensive for individuals to go to court. Most people are unaware of alternate dispute resolutions but as lawyers and their clients become more aware of these processes, they will become more popular in the future.”

Is 15-Minute Meeting With Real Estate Lawyer Enough for Family Law ILA?

Legal Advice Button In Blue Showing Attorney Guidance

Is 15-Minute Meeting With Real Estate Lawyer Enough for Family Law ILA?
Legally speaking, domestic contracts are no different from other types of contracts, and require certain elements and prerequisites before they are considered valid. The question in a recent case was whether a separation agreement between a couple could be valid even if one of them had not taken the steps to truly understand its terms.

There, the spouses entered into a cohabitation agreement that provided they would receive back the equity they each invested in a home they purchased as an “impulse buy” back in 2002 while they were still dating. The home had been put in the husband’s name, and it was agreed he would get 70 percent of any increase in that equity. They also agreed that there would be no claims for spousal support or equalization of property.

Later, when the couple split up, they disagreed on whether the cohabitation agreement was effective. The stakes were high – if the wife succeeded in getting the agreement set aside, then the husband would owe her an additional $250,000 as part of the equalization process.

In assessing whether the agreement was valid, the court looked at the overall picture at the time it was signed. It was true that the wife had received independent legal advice, but the circumstances in which it was given had not been ideal: She had brief meeting with the real estate lawyer that was doing their house deal. He did not have her sign a separate retainer in connection with the family law part, did not open a separate file for her, and did not give her a reporting letter afterwards. Moreover, he warned that he did not practice family law and encouraged her to retain a family law colleague who had an office in the same building.

Still, the lawyer testified he and the wife chatted for (at most) about 15 minutes without the husband present, and they did discuss the agreement and he told her about the family law provisions that governed the situation, and he provided a certificate of independent legal advice (“ILA”) as required.

In reviewing this evidence, the court said:

I do not find credible his assertion that he performed all the described ILA functions within the 15 minutes in which he met with [the wife]. His testimony at trial of his advice to her took the better part of an hour. … In short, there was little if any service provided to [the wife] in the 30 minutes [the lawyer] met with her … 15 minutes of which was most likely with [the husband] present to sign the documents.

The court added that a lawyer’s role in giving ILA is to be satisfied that the person understands the nature and contents of the agreement, and consents to its terms.

Despite these shortcomings with the ILA, the court nonetheless found that this was not a case for the court to use its discretion to set aside the agreement. This was not the usual situation where one party had preyed upon the other; this was merely a case where the wife had failed to “self-protect.” Nor was this a scenario where the wording was unclear or that she did not understand its nature and consequences; the wife admitted that she had not really read it at all until after she and the husband had separated.

In short, the wife had no excuse for failing to get proper independent legal advice or read the agreement before she signed it. The agreement was therefore valid.

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 www.RussellAlexander.com.