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Posts from the ‘Collaborative Family Law’ Category

“Runaway Train: Using Collaborative Practice to Derail High Conflict Court Cases”

low angle train tracks leading to pink sunset

“Runaway Train: Using Collaborative Practice to Derail High Conflict Court Cases”

High conflict court cases that never seem to end.  We have all heard, experienced and lived them. How can we use collaborative practice (CP) to address and redress the problems of high conflict family court litigation? Is it possible? Why would anyone try?

Many families cannot see the light that is CP; and court litigation is all they know, all they have been exposed to or was the only option presented to them when they separated.

One of the basic tenets of CP is that both lawyers agree not to go to court. They are ‘all-in’ with respect to the process and if it fails or break down they contractually agree to step aside and let new (often litigation) lawyers take over.

Newly Separate Spouses, Court and CP

We almost always start every file by proposing the CP process.  We write very open ended, friendly informative letters encouraging our client’s spouse to consider CP and hire a collaboratively trained lawyer.  Sometimes the other spouse does not respond or decides to be self-represented (or spouse 2  – “S2”). In these circumstances a court proceeding is commenced and sometimes proceeds undefended.  Usually at the very last step of the court process S2 then decides to retain counsel and respond to the proceeding.  If S2’s new lawyer has CP training this is a great opportunity to stop the litigation train as it is leaving the station.

The parties have the option to withdraw from court proceedings and pursue CP.  Or the parties can amend the standard CP agreement to reflect that the matter is already in court and place the existing court proceeding on hold until CP is pursued. Case management Judges have shown to be very accommodating with this approach and are often happy to get the case off their docket.  The one advantage to this approach is that any final CP agreement can be incorporated into a court order quite easily by administrative motion (14B) with little time or expense.  In addition, the court can also easily grant the divorce order.

Existing Court files and CP

What issues do you need to consider when existing court files are converted CP?  The addition of neutrals is always good practice and we should encourage client to always consider the benefits of a full CP team.  Family neutrals are excellent at improving communication and addressing immediate and ongoing parenting issues.  Financial neutrals can save time and expense and add credibility to the process of financial disclosure.

The lawyers and the clients then have to consider what do with the existing litigation: withdrawal the court action, put the action on hold, agree not to go to court with their former litigation counsel, agree to go back to court with the same counsel if the CP process fails, or agree to go to court to deal with specifically defined issues such as third party disclosure, maintaining jurisdiction of the children and divorce for example. Depending on the option chosen, the CP agreement may need to be modified accordingly.

CP Files and Court

There are a number of questions that arise when court files convert to CP and when converted CP files end up back in litigation.  A carefully crafted CP agreement can address many of these issues in advance but there are often unforeseen perils and pitfalls.

Stopping the runaway train of litigation using CP needs to be done with caution.  The simple option is to withdrawal the proceeding, agree not to return to court and enter into a standard CP agreement.

Sometimes, however, when there is impasse on varied issues such as valuations, parenting times, school location or jurisdiction it can be helpful to have a case management judge provide guidance to the parties using a modified hybrid CP approach.

A hybrid approach involves modifying the CP agreement to permit the parties to revisit case management for issue specific impasses, such as: disclosure, valuations, third party participation (shareholders or directors for example), schooling, time sharing and parenting issues. The CP agreement can also specify what information and disclosure could be used in later court proceedings if necessary.

Sections of the standard CP agreement that need to be addressed and possibly modified when stopping the train of runaway litigation include:

  • Agreement not to go to court
  • Agreement not to use information acquired in the CP process in court proceedings
  • Agreement to choose new lawyer
  • Notice provisions and waiting periods
  • And more

Summary

Purists will argue that modifying CP agreements and converting court actions or taking a hybrid approach to CP files (or small “c” collaboration) is not true to the cause and runs contrary to the principles of collaborative practice. However, there are many families caught up in the frenzy of court litigation and the system is being strained by the increasing number of family court matters and the increase in self represented litigants. Perhaps we can use CP creatively to put the brakes on or even stop the runaway train of family court litigation and help ease an overburdened justice system and find closure for families caught up in the disconnect of litigation.

At Russell Alexander Collaborative 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

Lori Dubin joins the team at Russell Alexander Collaborative Family Lawyers

lawyer portrait

Lori Dubin is now an associate lawyer at Russell Alexander Collaborative Family Lawyers. She is recognized for her client-centered approach and efforts to provide practical and efficient advice in order to achieve the best possible results. She has extensive experience in resolving high conflict cases and successfully settles most of her cases prior to trial.

Lori has practiced law for over 15 years. Prior to working in family law, Lori had 11 years of experience as a criminal trial lawyer with a focus on crimes arising out of domestic relationships. During her academic career, Lori was the recipient of several scholarships based on her academic achievement at York University. She achieved magna cum laude in her final year of her Honours Bachelor of Arts degree program in Psychology and Mass Communications.

Lori studied for her LLB at Osgoode Hall Law School, graduated in 2003 and was called to the bar after a year of Articling for a prominent Toronto firm. She’s trained new lawyers at the Law Society of Ontario’s Law Practice Program, acted as an articling principle, adjunct professor at various institutions, and commentator on Court TV Canada. Lori is an active member of the Toronto Lawyers Association and the Toronto Family Law Association. She has served her community on numerous Legal Aid Panels and Pro Bono assignments.

Aside from working, Lori has a very active family and social life. She is a fitness enthusiast and loves dogs, especially her own toy poodle.

Welcome to the team, Lori!

 

 

The Bezos fortune gets divided in a private divorce agreement and Amazon doesn’t miss a beat

The Bezos fortune gets divided in a private divorce agreement and Amazon doesn’t miss a beat

MacKenzie Bezos announced earlier today in a tweet that she and, now ex-husband, Jeff Bezos, have settled their financial affairs in a private divorce agreement. Though full details of the Agreement are not publicly available, MacKenzie declared she was “happy” to sign over 75% of the couple’s jointly owned stock in Amazon as well as voting control of her shares and her interests in The Washington Post and the Blue Origin aerospace company.

Following the news of the Bezos family settlement, Amazon’s stock price reportedly dropped by a mere 0.4%. The Bezos’ settlement out of court played a significant role in stabilizing the effect their separation would have on Amazon’s viability, and stock price. Consider the contrary, for a moment—had the Bezos’ litigated their family law dispute, personal financial details would have been made public record, and the very fate of Amazon may have been at the discretion of a family court judge—which could have resulted in an outcome felt around the world.

The success of the Bezos family settlement illustrates key benefits of resolving legal issues out of court: privacy, creativity and a controlled impact on the family business. These same benefits can be realized by family business owners who choose the collaborative process. Collaborative clients are empowered to privately resolve legal issues using creative solutions like share transfers, family trusts and delayed equalization, to name a few, to ensure an orderly transition, preserving the family business, and family legacy for generations.

We have published several other posts on the very topic of how the collaborative process can help family run businesses survive and thrive after divorce. To learn more, click here.

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 5 Latin Terms You Should Know Before Going to Court


Latin terms are often used in the Court of law sans English translation or explanation. If the party to the ligation is not familiar with these terms, he/she may not fully understand what is going on in their own legal matter. These are the Top 5 Latin Terms You Should Know before attending your family law case in Court.

1. In loco parentis

“In the place of a parent”

This phrase is used to refer to a person or entity assuming the normal parental responsibilities for a minor child. It is often used in situations where there is a transfer of legal guardianship, or to refer to schools or other institutions that act in the place of the parents on a day-to-day basis.

 

2. Lex loci

“In the law of the place”

The term refers to the law of that particular country, state, or locality where the matter under litigation took place. It usually arises in connection with legal disputes that span multiple jurisdictions, for example where children have been removed from Canada by one parent and the issue arises as to which jurisdiction’s laws govern the situation (an area of law called “conflict of laws”).

 

3. Non est factum

“It is not my deed”

This term is more commonly used in contract law, but it can be applied in the context of separation agreements that have been reached between spouses or common law partners. It refers to an assertion by one signatory to a contract that the agreement is invalid on the basis that he or she signed unintentionally and without fully understanding its implications.

 

4. Parens Patriae

“Parent of the nation”

This term refers to the power of the State to act as parent to a child, in situations where the legal parents are unable or unwilling to do so. For example, when children are removed from their parents’ care in order to be cared for under the auspices of the Children’s Aid Society, such a step is achieved and authorized through the exercise of the Ontario government’s parens patriae authority.

 

5. Res judicata

“A matter judged”

A matter that is res judicata is one that has been adjudicated to the point of conclusion, meaning no further appeals or legal actions by the involved parties is permitted. For example, if divorcing parties have brought their claims for equalization of net family property to one court, and have had the matter heard and adjudged, then they cannot afterwards go judge-shopping to a different court for a different or better outcome on that particular aspect of their separation. Once their issues have all been heard (and leaving aside those legal matters that are eligible for applications to vary), the matter becomes res judicata.

 

Honorary Mention…

Inter vivos

“Between the living”

This term is used to refer to a gift or other non-sale transfer between living parties. For example, a gift by living parents to their children is called a gift inter vivos; this is distinct from a transfer made by Will, which takes effect upon the testator’s death.


This blog is an updated version of the original article published in 2012.

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At Russell Alexander Collaborative 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

We Are Now Seeking an Associate Family Lawyer

Russell Alexander Collaborative Family Lawyers is growing and we are seeking an Associate Family Lawyer to join our team! We practice exclusively in all areas of family law at multiple office locations in Ontario. We provide the opportunity to work remotely up to three days a week.

Job Type: Full-time

Salary: $150,000.00 – $200,000.00

Required skills and knowledge:
• Qualified to practice law in Ontario;
• Minimum of 3 years experience in Family Law and litigation;
• Interest and/or Certification in Collaborative Practice;
• Ability to work independently and in a team-environment;
• Strong and effective analytical and problem-solving skills, and excellent writing skills;
• Ability to engage in effective oral advocacy;
• Excellent organizational and time management skills, including attention to detail, and an ability to multi-task;
• High level of professionalism and initiative.

Responsibilities:
• Drafting legal documents, including but not limited to, pleadings, motions, affidavits, financial statements and conference briefs;
• Upkeep on all current client files, as well as bringing in new clients
• Delegating work to law clerks, and working closely with law clerks on files;
• Attending court.

Applications will be kept confidential. Please submit resume and cover letter to reception@russellalexander.com

Ajit Roopnarine Completes His Level II Collaborative Practice Training

Our Associate lawyer, Ajit Roopnarine, has completed his Level II of the Collaborative Practice Training organized by the Ontario Collaborative Law Federation (OCLF). This training supplements the Level I training that all lawyers wishing to practice collaboratively must complete. The training focuses on further developing expertise in interest based negotiations, client assessment and suitability, managing client expectations, strengthening communications tools and managing a Collaborative Practice case.

Congratulations Ajit on getting one step closer to becoming a collaborative practice family lawyer.

To learn more about the OCLF, click here

What is the Resolution Evolution – the Path to Peace?

What is the Resolution Evolution – the Path to Peace?

The Resolution Evolution – the Path to Peace is an OCLF/OAFM Conference and your opportunity to take advantage of world-class training close to home, to meet and network with other collaborative professionals, and to socialize with our professional colleagues.

The conference will run May 2, 3 & 4, 2019 at the Brookstreet Hotel, Ottawa, Ontario.

To register or learn more, click here.

Russell Alexander Collaborative Family Lawyers’ First Annual Holiday Toy Drive

Poster for Russell Alexander Collaborative Family Lawyers' Toy Drive

 

Russell Alexander Collaborative Family Lawyers are pleased to announce the start of their First Annual Holiday Toy Drive. This year the drive will be supporting Bethesda House located in the Durham Region and A Place Called Home located in The City of Kawartha Lakes.

New, unwrapped gift donations can be made in the Brooklin office for the Bethesda House. They have informed us of the lack of gifts for children 13-17 years of age. Some gift suggestions for them include:

  • Sports equipment
  • Art supplies
  • Games
  • Movie passes and gift cards
  • Purses and backpacks
  • Make-up, lotion, perfume
  • Hats and scarves

The Lindsay office is accepting new, unwrapped gifts to be donated for A Place Called Home. There is no recommended age for donations for this organization.

If you wish to donate to the toy drive this year, it will be running from November 1, 2018 through to December 7, 2018. You may drop by with your donation in the Brooklin or Lindsay office any time between 9:00 a.m. and 5:00 p.m. on Monday to Friday. For further details, feel free to give our office a call at 905-655-6335.

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