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Posts tagged ‘family law’

How to Use Technology to Improve Your Family Law Practice

It’s more common than ever: family lawyers are using technology to enhance efficiencies, to market legal services, and to operate the business side of their practices. Do you know what tools and apps are out there that can help you? Are you up to date on the latest possibilities? Learn how to appropriately integrate technology to transform your practice while ensuring you comply with the Rules of Professional Conduct.

  • ​Understand how to use social media to promote your practice
  • Improve client experiences by utilizing technology tools
  • Learn how to incorporate technology through the life of the file
  • Hear about tech tips, tricks and traps

Check here to learn more or to register for the program.

This program qualifies for 2 professionalism hours of CPD.

Are Some People Genetically Destined for Divorce?

Are Some People Genetically Destined for Divorce?

Some surmise that children of divorce may experience a greater chance of divorce when they grow up because of their environment. Recent studies and news reports suggest that when it comes to divorce history may indeed repeat itself but not for the reasons you may think.

Studies and prior literature emphasized that divorce was transmitted across generations psychologically and as a result of environmental factors.

However, recent studies  “contradict that, suggesting that genetic factors are more important.”

Jessica Salvatore, Ph.D. reports that:

The study’s findings are notable because they diverge from the predominant narrative in divorce literature, which suggests that the offspring of divorced parents are more likely to get divorced themselves because they see their parents struggling to manage conflict or lacking the necessary commitment, and they grow up to internalize that behavior and replicate it in their own relationships.

[The study] analyzed Swedish population registries and found that people who were adopted resembled their biological — but not adoptive — parents and siblings in their histories of divorce.

By recognizing the role that genetics plays in the intergenerational transmission of divorce, therapists may be able to better identify more appropriate targets when helping distressed couples, Salvatore states:

“At present, the bulk of evidence on why divorce runs in families points to the idea that growing up with divorced parents weakens your commitment to and the interpersonal skills needed for marriage. So, if a distressed couple shows up in a therapist’s office and finds, as part of learning about the partners’ family histories, that one partner comes from a divorced family, then the therapist may make boosting commitment or strengthening interpersonal skills a focus of their clinical efforts.”

So how does free will and fault play into divorce in light of these findings?

In Ontario, we operate a no-fault divorce process:

Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce.
However, if the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.

As a result, someone’s genetic disposition, as it relates divorce, will not shape the outcome of the divorce proceeding. But as Dr Salvatore’s study suggest, this information would be helpful in therapy and focusing clinical efforts on boosting commitment or strengthening interpersonal skills.

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.

Should You Have to Write an Exam to Get Divorced?

 

Should You Have to Write an Exam to Get Divorced?

A judge in China’s city of Xi’an is requiring people seeking a divorce to take a “divorce examination”. The exam results will determine if they are allowed to proceed with their divorce. It was reported that some of the questions include:

“1. “How long have you been dating? What is your wedding anniversary? How do you split the household chores?”
2. “When you were dating, what words or actions did your partner say or do that moved you the most?”
3. “When you have differing views, which of you first breaks the deadlock and how is this done?”
4. “Of the duties that you take on in the family, which ones did you do well and which ones did you not do well? How do you plan to improve?”

The exam is designed to court time and resources and also to address China’s increasing divorce rate that has jumped by 8.3% in 2016. (4.3 million couples divorced In 2016).

What is Ontario Doing?

Ontario launched the Mandatory Information Program (MIP) that requires couples contemplating divorce to attend a MIP that provides information about separation and the related legal process, and may include information on topics such as:

• The options available for resolving differences (including alternatives to going to court);

• The impact that separation may have on children; and

• The resources available to deal with problems arising from separation.

Here are some other points to note about Ontario’s MIP:

• This is a mandatory information program only; it is NOT the same as mandatory mediation for spouses.

• Spouses do not have to attend the program together.

• It only applies to spouses who are asking for something in addition to divorce (i.e. spousal support, child custody, child access or child support, division of property, and/or equalization of net family property).

• If a spouse neither contests the divorce nor attends the mandatory information session, then the other spouse can have his or her claims proceed as “uncontested”.

• If only one spouse is filing for divorce, the other spouse only has to attend a separate session if he or she contests that divorce, or else makes his or her own claims.

• The fact that one spouse does not attend a mandatory information session does not prevent the spouses from obtaining a divorce.

It should be noted that there no divorce exam in Ontario (at least not yet).

Ontario Divorce: The Basics

Married couples seeking a divorce in Ontario are subject to the federal Divorce Act, which states that a court may grant a divorce to parties where there has been a “breakdown of the marriage.” Unlike a separation agreement that can be finalized outside of court, only a court can grant a divorce. It is up to the parties filing their application for divorce to satisfy the court that there has been a breakdown of the marriage.

According to the law, a breakdown is recognized where the parties have been separated for at least one year or where the party filing the application proves that their spouse has committed cruelty or adultery. In practice, the vast majority of couples rely on the one-year period of separation as the ground for divorce.

So what do you think?  Are you ready to write an exam?

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

Bitcoin and Divorce: Perils and Pitfalls

 

Bitcoin and Divorce: Perils and Pitfalls

We are seeing increasing divorce cases that involve Bitcoin and other crypto currencies.

This Is Money reports that there have already been several divorce cases that involve Bitcoin. They rightly point out that discovery and tracing of this asset can be problematic for lawyers:

“Tracing cryptocurrencies could be enormously time-consuming and expensive. This is, of course, much easier if cryptocurrencies are traded via an online investment platform and bought with funds from a bank account, as the original value of the transaction can then be established. When cryptocurrency is purchased directly and moved offline, it becomes almost impossible to trace.”

For divorcing couples in Ontario, full financial disclosure is the norm. So, if you own Bitcoin or other crypto currencies you will need to disclosure these assets (and their value) to your spouse. If fail to disclose your Bitcoin then there is a chance that any Court Order or divorce agreement you enter into may be set aside if the asset is discovered later as result of this non-disclosure.

The relevant date to value the asset would be your date of separation (DOS). The Bitcoin may also be exempt from sharing if you brought this asset into the marriage and owned it on your date of marriage (DOM). The value of the Bitcoin on your DOM may be a deduction to any final sharing you do with your spouse. However, the value increase of you Bitcoin from your DOM to your DOS may have to be shared with your spouse.

You should engage the services of an experienced family lawyer if you are divorcing and you (or your spouse) own Bitcoin or other crypto currencies.

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

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

Part I

Part III

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Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?


Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?

Simply put, the age of a child does affect the amount of child support ordered. In this video we discuss how and when the age of the child could affect child support. Income considerations, age of the child and needs of the child should be considered.

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

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

Top 10 Blogs of 2017

Top 10 Blogs of 2017

As we embrace the New Year, we’d like to take the opportunity to thank our readers for their continued interest and support. We would also like to recap some of our most popular posts from yet another busy year.

Here are some of our top blogs from 2017

Number 10: Ontario Superior Court Justice Pazaratz Speaks Out Against Legal Aid Squandering – Again

In his written endorsement of a consent order in Abdulaali v. Salih, Justice Pazaratz characteristically drew attention to the perceived waste of public funds in the case before him. He unapologetically chastised both Legal Aid Ontario and the parties for “squandering scarce judicial and community resources.” He bluntly stated that the case should not have been dragged out so long, and should not have been funded by public coffers so indiscriminately.

Number 9: Court to Delinquent Husband: If You Don’t Play By the Rules, You Don’t Get to Play

With unpaid cost awards of $10,000 and $25,000 from prior decisions, a husband sought an extension for appealing yet another judgment. In Schwilgin v. Szivy, the Court of Appeal for Ontario yielded the wife’s cries for justice in a situation where successive cost awards in her favor ironically left her with an empty wallet. The Court disapproved of the husband’s use of court procedure to delay payment of arrears, effectively, restoring wife’s faith in justice and putting husband on ice.

Number 8: Wife Dumps Husband Over Trump

Would you end a marriage of 22 years over politics? Not “politics” in the colloquial sense—actual governmental politics. 73-year old Gayle McCormick of the U.S. did exactly that. After learning of her husband’s intention to vote for Donald Trump, the retired Californian prison guard was “in shock.” Although Gayle’s husband never ended up voting for Trump, the damage was already done—she became “totally undid” after she saw his true Republican colors. Not even the adhesive backing of a toupee could hold them together after his revelation.

Number 7: Separation Agreement Drafting Error: Can a Spouse Take Advantage

This post recapped the importance of achieving a “meeting of the minds” at the bargaining table. In Stevens v. Stevens, the husband sought to enforce a marriage contract drafted by his wife’s lawyer apportioning the whole value of the matrimonial home to him. The husband and his lawyer’s attempt to take advantage of the drafting error were met with harsh criticism as the Court found in favor of the wife. The Court declined literal interpretation of the contract as the wife clearly intended only a half interest.

Number 6: Calling Someone a “Liar” Online: Is that Defamation, or Merely “Comment”?

This post explores an interesting legal question arising from a not-so common scenario:

From 2008-2010, Levant, an outspoken political commentator, posted nine blogs each bearing a headline calling Awan, a law student, a “liar.” Levant’s digital tirade was prompted by Awan’s testimony at a human rights tribunal in which Awan and fellow law students alleged a Mclean’s magazine cover story titled “The Future Belongs to Islam” had an Islamophobic tone. Levant argued his remarks were merely comments and not defamation in the ordinary sense.

The question is this: Is calling someone a “liar” merely a “comment” made as part of an online discourse, and therefore, not defamatory?

No. The usual defences to defamation do not prevail where there is evidence of malice, as in the case of Awan v. Levant. Levant was ordered to pay Awan $50,000 in general damages and $30,000 in aggravated damages.

Number 5: Father Who Paid $400K in Legal Fees to “Cause Financial Harm to the Mother and His Son” Ordered to Pay Mother’s Costs Too

Does justice favour the party with the biggest legal bill? In Jordan v. Stewart, we commented on a case where a father paid $400K in legal fees seeking to terminate child support.

The Judge denied the father’s request and chastised him for the logic-defying extent he was willing to go in satisfaction of that end. Ultimately, the father’s wanton disregard for the financial consequences and refusal to accept reasonable offers by his ex-wife, resulted in the somewhat ironic outcome of a costs award to the wife.

Number 4: If a Biological Parent is Paying Child Support, Does a Step-Parent Still Have to Pay?

This blog post explored the interesting legal issue of whether a step-parent should pay child support. The legal test is whether the step-parent whom an order for child support is sought against “stands in the place of a parent for a child.” Such determination cannot be made without consideration of all the material circumstances.

In Stetler v. Stetler, a step-father who provided financial support to his partner’s child over the duration of their 8-year relationship refused to pay child support as the child’s biological father had been paying child support all along. The Court found the circumstances of the step-father’s relationship to the child clearly met the legal test.

Number 3: Court Strikes Family Law Firm’s $72,500 “Premium” as Being a Contingency Fee

Few would dispute that legal fees can be expensive. This becomes painfully more obvious when a family law lawyer charges a “premium” for achieving positive results. In Ontario, section 28.1(3) of the Solicitors Act prohibits contingency fee agreements in a family law matter.

The case of Jackson v. Stephen Durbin and Associates serves as a clear reminder to prospective clients with a family law matter: Read the fine print and always ask your lawyer clarifying questions about fees you suspect may be a contingency fee disguised as something else.

Number 2: Self-Represented Wife Asks for $18K in Legal Costs; Court Awards $30K Instead

It pays to be a well prepared self-represented litigant – literally. In the decision of McMurter v. McMurter, a self-represented litigant successfully opposed her husband’s motion to terminate spousal support obligations in a trial that lasted 15 days.

The wife’s request for costs was met with an unusual turn of events – it was improved by the Judge. She requested costs in the amount of $18,000, but ended up receiving $30,000. The quality of her written submissions and oral representation at Court were credited for the irregular increase.

Number 1: Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

This post continues to be popular, and has been our most viewed blog entry this year. In this post we explored the scandalous topic of privacy invasion inside the bedroom. As if separation and divorce weren’t already difficult enough, the wife in the case of Patel v. Sheth became the star of her husband’s hidden camera during a brief period of reconciliation and resumed cohabitation.

The wife sought $50,000 in damages against her husband for intruding upon her seclusion, a new common law tort introduced to redress privacy invasion. The Court found in her favor and awarded her $15,000 in damages. While she did not receive damages to the extent she had been hoping, she undoubtedly walked away feeling vindicated.

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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