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Posts from the ‘Online Dispute Resolution’ Category

Wednesday’s Video Clip: Confidentiality


Wednesday’s Video Clip: Confidentiality

In this video we discuss how all information you provide to your lawyer is completely private and confidential. All the details of your case will be handled with the utmost confidentiality and respect for your privacy.

The privilege of confidentiality between solicitor and client is, in law, a protection which belongs to the client. Therefore, it is up to the client, only, whether or not that confidentiality is to be waived.

Please remember this when your family members or friends request information directly from your lawyer. Lawyers are frequently contacted by new partners, or other family members who want to discuss your case.

You have to give your lawyer specific instructions to permit that discussion to take place. Also, as the time spent by your lawyer will be time spent on your file, you will be billed for any time spent discussing your case with anyone at your request, or in the context of your file.

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

Wednesday’s Video Clip: Ontario Divorce Law – Is Collaborative Practice Right for You?


Wednesday’s Video Clip: Ontario Divorce Law – Is Collaborative Practice Right for You?

Collaborative Practice is a way for you to resolve disputes respectfully – without going to court – while working with trained professionals who are important to all areas of your life.

In this video we introduce the concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.

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

Was Judge Correct in Assessment of Litigants, Lawyers, and the Legal System?

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Was Judge Correct in Assessment of Litigants, Lawyers, and the Legal System?

In a recent Ontario family case called Hutton v. Hutton, I read a few passages from the judge’s reasons that gave me pause.

There, the wife was representing herself in what was otherwise a routine proceeding for divorce and the equalization of net family property. The husband took the relatively-unusual step of bringing a motion to strike out about 10 paragraphs of the wife’s pleading, claiming that they were irrelevant, prejudicial, scandalous, embarrassing, and will delay the fair trial.

The motion judge said:

The law in family law cases concerning pleadings is the same as in non-family civil matters — that is to say – relevance. However, in view of the personal emotional issues that generally drive the legal issues, the courts have taken a more relaxed approach and tolerate an expanded view. The dramatic increase in non-legally trained self-represented litigants has hastened this relaxed approach to the point that lawyers are frequently persuaded by their clients to adopt a stance that the opposite party must be portrayed as an evil person in order to guarantee success. This inevitably requires that every real or imagined slight or disagreement is seen to take on major significance in support of the description of the opposite party. As might be expected, the opposite party feels obliged to retaliate. The real issues become lost in the accusations, denials, counter-accusations, and counter denials. Each party’s perceived baggage and the rights and wrongs of it all become the cross the court must bear – running the risk of obscuring the real issues. In other words, the battle becomes the central focus – not the outcome.

Whether to the average member of the public this comes off as insightful or else disheartening, it struck me as being unusually candid for a judge. The judge also turned his scrutiny to the members of the legal profession: In the context of pointing out that a motion to strike pleadings is relatively uncommon in family law matters, the motions judge continued:

On the one hand, it can be argued that family law disputes for the most part are so fraught with emotion that we should patiently focus on the issues without regard to the clear violations of the rules. On the other hand, lawyers must take some responsibility and resist the temptation to be the hired gun whose mandate is to destroy the reputation (if not all the worldly goods) of the opposite party. I accept that a lawyer who adopts this principled legal approach may have an unhappy client. However the alternative demeans our legal institutions and those who tirelessly work to make it the backbone of our democratic society.

Ultimately, the judge ruled that 6 of the 10 impugned paragraphs in the wife’s pleadings should indeed be struck, but in doing so he took the unusual step of peeling away a little bit of the veil of idealism over the legal system.

Is the judge right? What are your thoughts?

For the full text of the decision, see:

Hutton v. Hutton, [2015] O.J. No. 5606, 2015 ONSC 6683

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

What Will 2016 Bring to Ontario Family Law?

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What Will 2016 Bring to Ontario Family Law?

It’s a new year: A time to reflect on the past and learn from it, and then look forward to the future.

Here is my list of the hotter 2015 Ontario family law topics that I think will continue to have resonance in the coming year:

Self-represented litigants. Family law has seen a sharp increase in the number of self-represented litigants over the past few years. There are many reasons for this, but as I have illustrated in numerous prior blogs, it is not a positive development in my view. These individuals, intent on trying to save legal costs, often “spin their wheels” trying to navigate a complex and procedurally-intricate justice system on their own and without training. Too often, this leads to needless or high costs anyway, and less-than-optimal financial and other results in their litigation matter itself. Nonetheless – and for better or worse – I suspect that people’s urge to self-represent will continue throughout the coming year.

Unbundling of legal services. The notion of giving clients the cost-effective option to hire family lawyers to essentially do piecemeal or “unbundled” legal work under a limited retainer has gained increasing traction recently. This arrangement allows lawyers to perform pre-agreed, specific and well-defined tasks, rather than take on the client’s entire family litigation file from start to finish. The Law Society of Upper Canada (which is the regulatory body that governs lawyers) has drafted rules to guide lawyers in such situations, and has recently put on a continuing legal education seminar to help those lawyers properly and effectively navigate such unbundling arrangements. Clearly there is more of this to come.

• Mediation, arbitration, and collaborative family law. The trend toward increasing use of alternate dispute resolution methods has steadily increased in years past, and the coming year should be no exception. Public awareness and access is helped by various government initiatives, such as the Mandatory Information Programs that are available at family court locations across Ontario, which provide litigants with information about separation and divorce and the related legal processes.

• Streamlining of family proceedings. Hopefully 2016 will add even more efficiency and streamlined procedure to the existing family system. We already see the benefits of the widespread use of the Federal Child Support Guidelines, which dictates child support amounts payable at various income levels and circumstance. The Guidelines have provided a healthy and needed dose of certainty and streamlining to this area of family law at least. Some “softer” gains have been achieved through the use of case conferences, which are optional in some circumstances, but mandatory in others. Presided over by family judges, they are intended to help narrow the issues between the parties, and explore the possibility of settlement. Let’s hope the coming year sees more productive initiatives of this type.

What are your prediction for family law in the year 2016?

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

Courts Are Not Above Lecturing Parents

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Courts Are Not Above Lecturing Parents

One of the things I’ve noticed recently while reading recent Family Cases, is that courts are increasingly willing to “colour outside the lines” in their written reasons, in order to admonish litigants for their poor behavior, lack of cooperation, and unwillingness to participate fully in the very same court processes that are designed to help resolve the disputes between them.

A good case in point is McCall v. Res, which involved a typical pair of parents who were having difficulty cooperating with each other, even though it was at the expense of their child’s best interests. Both father and mother had been combative and uncooperative with each other, and each had ignored or tried to circumvent the rights of the other. As a result, the parents had to return to court a number of times in order to have relatively minor disputes resolved.

After making its latest ruling, the court levelled this criticism at the father:

There are a couple of messages here for the parties. They are the parents of a young child, and they will be very involved in his life for many years to come. Father in particular needs to decide how he will conduct himself toward the mother. If he chooses to carry on in the manner he has demonstrated up until now, he will find himself in ongoing litigation, with potentially very serious consequences. Apart from the more obvious consequences, he will eventually discover that by modelling such poor behaviour for his son, this could well lead to negative outcomes for his child. Very simply, he must change his attitude toward the mother, as well as his behaviour toward her.

The court also chastised the mother for her narrow thinking in connection with the father’s rights:

For her part, the mother must understand that notwithstanding her victimization at the hands of the father, he is very much involved in his son’s life and, on the evidence to date, it is in the child’s best interests that this continue. The mother’s attitude expressed in her pleadings, that she is the custodial parent and, as such, she has the right to make vacation decisions, including the sole decision regarding how much time she is entitled to be out of Canada with the child, is dismissive toward the father, as well as to the child’s rights to have an active and nurturing relationship with him.

The court ended with a more dire warning to them both:

The parents are now at a crossroads, and they have two choices. They can continue along their present path, the results of which will not be pleasant for either of them nor, incidentally, for their child. Or, they can sit down with the parenting coordinator and make sincere efforts to reach compromise solutions to their respective problems. Each will have to make concessions to the other. That is what parenting is about; that is what life is about. If they demonstrate their willingness and ability to take this second path, they can then concentrate on moving on with their lives, rather than becoming one of those high-conflict sets of parents who spent their child’s entire life returning to court over and over again. I wish to stress that I do not believe these parents are at this stage yet, but unless they engage in an attitudinal sea-change, it is only a matter of time before they get there.

These are very wise words from the court, indeed.

For the full text of the decision, see:

McCall v. Res, 2013 ONCJ 254 (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 www.RussellAlexander.com

10 Ways to Get Information About Family Law – video


 

Wednesday’s Video Clip: 10 Ways to Get Information About Family Law

In this video we discuss how there are many professional people, organizations and other sources that can help you or provide information about family law issues:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for many of these resources, and

10. A librarian at your public library may also be able to help you.

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 10 Tips on Drafting Domestic Contracts

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Top 10 Tips on Drafting Domestic Contracts

Any domestic agreement (which in Ontario can include a marriage contract, cohabitation agreement or separation agreement), must be drafted with great care and attention to detail. After all, it is a binding legal contract that – when done right – will govern the rights and responsibilities of the spouses or relationship partners who have entered into it.

 

At the risk of stating the obvious:   If you want a good, airtight domestic contract, you should see an experienced lawyer who specializes in Family Law.   Among other reasons, this is because the provincial Family Law Act that governs many of the matters that are purportedly covered by domestic contracts, and it is vital to understand the interplay between the legislation and any agreement you may reach with your spouse.

 

But before you consult a lawyer, here are some tips that we can provide in order to help formulate the types of issues you want to address in your own domestic contract, and to help you understand and navigate the agreement-drafting process:

Tip 1:Be Thorough

  •  Any good domestic contract must cover all the legal points, avoid inadvertent loopholes, and withstand the passage of time. It should also contemplate certain tangential implications (such as income tax consequences), and should provide for a mechanism by which any disputes are to be resolved.

Tip 2: Be Precise

  •  The agreement must also be in clear precise language that you and your spouse can easily understand and follow.   Legal jargon – or “legalese” as it is sometimes called – should be avoided; this includes old-fashioned terms such as “party of the first part”, “aforesaid” and “hereafter”.

Tip 3: Confirm the Facts

  •  Makes sure that the statements and pre-suppositions that form the basis of the agreement are factually correct. This includes obvious things such each spouse’s legal name and the address of any homes or recreational properties; but it also includes making sure that any dates or date-ranges, business addresses and bank account numbers referred to in the agreement are reflected with precision.

Tip 4:  Be Specific

  •  Individual or family assets should be itemized and described in great detail, to avoid uncertainty and confusion. This naturally includes physical tangible objects, but can also include more esoteric items such as corporate shares, interests in timeshare properties, etc.   It is wise to include long lists of items in a Schedule to the agreement rather than the main body, to avoid cluttering the main part of the agreement, and to allow for easier amendment of those lists if necessary.

Tip 5: Avoid the Kits

  •  There are some domestic agreement “kits” on the market, that purport to provide legal clauses that can be customized to suit.   However, these should be avoided, because One Size Usually Fits None.   Indeed, it is dangerous to use any precedent unless you fully understand its meaning and the legal implications; that’s what lawyers are for.

Tip 6: Avoid Boilerplate, Too

  •  Similarly, even if you avoid the pre-fabricated agreements, it’s important to beware of using standardized “boilerplate” clauses, that are drafted broadly and aimed at covering off a wide range of scenarios and contingencies. Only rarely will these provide the best coverage of your unique situation.

Tip 7: Try to Guess the Future

  •  The agreement should contemplate that there may be gradual changes over time, or that certain likely events may arise in the future.   These might include changes in custody, or the re-marriage of one or both spouses, for example. These kinds of potential scenarios should be discussed with your spouse and reflected in the agreement whenever possible.

Tip 8: Watch Out for Loose Ends

  • In tandem with the need to address future contingencies is the need to identify “loose ends” and “loopholes” in the drafted agreement. This is another area where the advice of a good Family Law lawyer is particularly helpful.

Tip 9: Be Realistic

  • Although the agreement should be comprehensive, it cannot possibly purport to govern every aspect of either spouse’s day-to-day living.   Terms or obligations that are unrealistic or too difficult to live by will be the first ones that get breached, with a dispute between spouses being the inevitable consequence.

Tip 10: Get it Reviewed

  • Most domestic agreements are drafted during a point in time when the two of you are in a positive, happy, pro-relationship headspace (e.g. in the case of pre-nuptial contracts or cohabitation agreements), and it’s precisely the time when many important matters can get overlooked, glossed over, or brushed aside as “unimportant”.   It’s therefore particularly important to have such agreements reviewed by a lawyer specializing in Family Law: Not only will that lawyer know the law and apply a trained eye to the wording of the document, but he or she will emphasize the need for each of you to get independent legal advice.

These tips are just a starting-point, but they go a long way toward making sure that any domestic contract that you draft will have the intended effect between you and your spouse.   This in turn will avoid disputes – or worse, having the agreement (or parts of it) be overturned by a court.

 

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.

 

Is Collaborative Practice Right for You? – video

 
 

Wednesday’s Video Clip: Ontario Divorce Law, Is Collaborative Practice Right for You?

Collaborative Practice is a way for you to resolve disputes respectfully — without going to court — while working with trained professionals who are important to all areas of your life.

In this video, Abi Adeusi, introduces us to concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.