Skip to content

Posts from the ‘Uncategorized’ Category

Family Law Now | Episode 2: Top 10 Things You Should Know About Collaborative Practice

Top 10 Things You Should Know About Collaborative Practice

Episode Info

On this episode, hosted by Russell Alexander with special guest Jason Isenberg, two collaborative family lawyers discuss the process, resources, and the various benefits for clients who choose collaborative. Tune in to Family Law Now to learn more!

Listen on SoundCloud.


Show Notes

1. Key Elements

2. The Difference Between Collaborative Practice and Mediation

3. The Collaborative Team

infographic collaborative family law team members

4. A Different Approach

5. Reducing Hostility in Family Disputes and Separation

6. The Nuts & Bolts of Collaborative Practice

7. The Pace of Collaborative Practice

8. A Focus on the Future

Communication Guidelines

9. A Focus on Interests, Not Positions

10. Further Information about Collaborative Practice

Contact a Lawyer

Collaborative Practice Institute

OACP (previously known as OCLF)


Thank you for tuning in!

Family Law Now Podcast Logo

Win 2 Tickets for NBA Game 7

raptors contest giveaway countdown 2 days left

Only 2 days left to enter our draw to win 2 tickets for game 7! Chances to win are limited to the first 1000 who complete ALL steps required to enter draw. Click here to learn more

Wednesday’s Video Clip: 10 Tips About Collaborative Practice Agreements

Wednesday’s Video Clip: 10 Tips About Collaborative Practice Agreements

 

Win 2 Tickets for NBA Game 7

raptors win tickets contest giveaway game 7

Only 3 days left to enter our draw to win 2 tickets for game 7! Chances to win are limited to the first 1000 who complete ALL steps required to enter draw. Click here to learn more

Top 5 Questions about Adultery and Divorce in Ontario

Top 5 Questions about Adultery and Divorce in Ontario

It seems that celebrity gossip tabloids will never have a shortage of topics to cover, as long as there are stories about extramarital affairs by successful, high-profile celebrities. Recently, Amazon CEO Jeff Bezos admitted to cheating on his wife, MacKenzie, and in the past it has been alleged that Arnold Schwarzenegger fathered a child with the housekeeper employed in the home he shared with his wife of 25 years.

Leaving aside the intriguing question of how adultery affects couples psychologically and emotionally, the legal effect of adultery is quite clear.

In Ontario (as elsewhere in Canada), the laws relating to divorce based on adultery are governed by the federal Divorce Act, which provides that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.” (Note that it must be the other party who commits the act: a spouse cannot apply for a divorce based on his or her own adultery).

Adultery and Affairs: Understanding the Basis for Divorce in Ontario

Adultery is one of the established grounds for divorce in Canada. Questions often arise as to whether the duration, extent or nature of the adultery matters when it comes to the right to obtain a divorce. Here are some common questions answered in this regard:

1) Does it matter how long the affair was going on?

No. Provided that it can be proven that adultery has been committed by one of the spouses, the other spouse can ask for a divorce. However, the adultery must have occurred before the petition for divorce is brought.

Top Five Points about Adultery That You Probably Didn’t Know

Does Wife Get Unequal Share Due to Husband’s Extra-Marital Affairs?

Fake Outbursts, Adultery “Fines”, and “Bloody Minded” Calls for Jail Time – All in a Day’s Work for the Family Court

2) What if the extramarital sex occurred only a single time? What if the spouse is remorseful?

A single act of adultery is a sufficient basis on which to bring a divorce action. And as long as the adultery was committed by one of the spouses, the other spouse has legal grounds under the Divorce Act to proceed with a petition. Whether or not the spouse actually wants to do so will be a personal decision.

[You can learn more about our firm here]

Gambling, Drinking and Affairs – Should Spouses Have to Account for their Misdeeds?

In a Failed Romance, Can You Sue for Negligence?

Can You Sue Your Ex’s Affair Partner for Damages?

Were Negotiations Contingent on the Husband Ending His Affair?

3) Do you need clear proof of an affair? Is it enough to suspect that something is going on?

In order to prove adultery, there is no prerequisite that the other spouse gets “caught in the act,” or that there be photos or other physical evidence of the affair. Instead a court must be satisfied on a “preponderance” of credible evidence that adultery has taken place. (For example see Nelles v. Nelles).

This can take place by inference, i.e. where the facts and circumstances lead to the reasonable conclusion that adultery has indeed taken place. However, a mere suspicion of adultery is not enough, nor is evidence that the other spouse had the opportunity to cheat (see Doucette v. Doucette). Also, there is no requirement that the party with whom the adultery is taking place must be named or identified.

 

Finally, it is the spouse who wants to bring the divorce action who must bring forward the convincing evidence that adultery actually took place. There is nothing unusual about the type of evidence required; however, the evidence will be considered sufficient if the adulterous spouse admits to the affair (see for example d’Entremont v. d’Entremont), or if the third party with whom the spouse is having the affair gives evidence attesting to the fact (see Vickers v. Vickers).

My spouse committed adultery. Does this make it easier to get a divorce?

Is a Marriage Contract Invalid if Signed During an Affair with Someone Else?

l of Commitment? Or Was He Buying an Interest in Her Home?

Can I use evidence of my spouse “sexting” in court?

4) What if the husband had an affair with another man? Or the wife cheats with another woman? Does that count?

Yes. Historically, Canada’s Divorce Act defined adultery along the same lines as the former definition of “spouses”, which involved only people of the opposite sex. Adultery was similarly defined by the courts as consisting of voluntary sex outside of marriage, between a spouse and someone of the opposite gender.

However, both the definition of “spouse” and the concept of adultery has been expanded by the courts to encompass same-sex relationships. In a 2005 case called P. (S.E.) v. P. (D.D.) a B.C. woman was granted a divorce after it was shown that the husband had committed adultery by having an affair with another man.

Top Five Points about Adultery That You Probably Didn’t Know

Wife’s Accusations about Husband’s Infidelities “A Waste of Time”

5) What about cheating over the Internet?

In order to qualify as “adultery”, there must be an actual, physical sexual relationship between one of the spouses and a third party to the marriage. Phone sex and other forms of sexually-charged activity – if conducted “from a distance”, so to speak – do not generally qualify as “adultery” as that term is used in the Divorce Act.

Thinking of Doing Some Cyper-Sleuthing? Think Again

Although these cases are often interesting and quite sad, for most family law practioners in Ontario these circumstances do not form the basis for their clients’ divorce claims.  The Court does not want spouses to focus on fault and blame but rather resolution.  For the most part, blame does not improve or diminish one’s property rights or entitlement to share family property in Ontario.  And the practical reality is that an Application for divorce based on cruelty or adultery may take a few years before the matter is finally determined if a full hearing is required.  If this is the case then the party seeking the divorce could also likely rely on the fact that s/he has lived separate and apart for one year and use this as the basis for the divorce claim.

For the full-text of the decisions, see:

(S.E.)v. P. (D.D.),2005 CarswellBC 2137, 2005 BCSC 1290 (B.C. S.C.)

Nelles v. Nelles (1971), 2 R.F.L. 153 (Ont. H.C.)

Doucette v. Doucette (1986), 73 N.B.R. (2d) 407 (Q.B.)

d’Entremont v. d’Entremont (1992), 44 R.F.L. (3d) 224 (C.A.)

Vickers v. Vickers (1976), 24 R.F.L. 303 (B.C. S.C.)

 

At Russell Alexander, family lawyers our lawyers can provide customized advice in connection with the dissolution of a marriage based on adultery, and with a large array of other family law questions. For more information, feel free to visit us at Russellalexander.com.

 

“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

Can You Get Child Support from Your Ex After 50 Years in Ontario?

us money bills

Can You Get Child Support from Your Ex After 50 Years in Ontario?

Multiple reports of a 74-year-old California mother getting $150,000 in child support owed to her from 50 years ago are hitting the headlines.

CNN reports:

“Toni Anderson married Don Lenhert in 1966, but the couple split two years later.

During the divorce proceeding in mid-1970, the judge ordered Lenhert to pay child support for their 3-year-old daughter Lane, consisting of monthly payments of $210 for the first 2½ years, and then dropping down to $160 per month until Lane turned 18.

The order commenced January 1, 1971.

But Lenhert never paid.

Those monthly payments comprise a principal of about $30,000, Anderson said, and with a 10% interest rate, he owes her $150,000.

“The first check bounced and then he went off to Canada with his girlfriend and had two more kids. He completely disappeared,” Anderson said.

Last year, Anderson realized there’s no statute of limitations for child support payments in California.

She Googled her ex-husband’s name and, she said, found photos of him living what appeared to be a financially sound life in Oregon, with a big house and a boat.

She filed a motion to ask for unpaid child support. Last month, she made her case in court. The judge granted her request.”

Does this sound fair to you?

Some would argue that the mother should have taken steps earlier to enforce support order and it is too prejudicial to require the father to pay now after 50 years. The child is an adult now so the $150,000 amounts to a windfall for the mother.

Others could properly point out that an Order is an Order, not a suggestion and the father should have complied 50 years ago, and any prejudice now is the result of his own misconduct.

Could this happen in Ontario?

As we have written previously the leading case in Canada for child support and retractive support awards is the Supreme Court of Canada’s decision in D.B.S.

If the claim for child support is made for the first time when the “child” is an independent adult, then the short answer is no. Child support is for children of the marriage, not adults who used to have that status.

If the basis of the retroactive claim is valid separation agreement or court order, then the answer would likely be yes. But each case is unique, and the court sets out several factors to consider in determining retroactive awards including, proper and timely financial disclosure, delay in seeking enforcement by the recipient and blameworthy conduct of the support payor.

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.

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.

If you like this blog, you’ll probably like our instagram.

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

%d bloggers like this: