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Posts tagged ‘Collaborative’

Family Law Now | Episode 5: Top 10 Things That Might Surprise You About Collaborative Practice

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On this episode, Russell Alexander is joined by children's lawyer, Jarret Johnston to discuss aspects of the collaborative process that might surprise you.

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Family Law Now | Episode 4: Top 10 Things You Should Know About a Financial Professional



On this episode, Russell Alexander is joined by Carrie Heinzl to share insight into understanding financial documents, developing creative solutions, and compromising with family members - all while going through a divorce.

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

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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.

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“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

10 Things You Should Know About Ontario Child Support in 2019

One of our most popular articles 10 Things You Should Know About Child Support was published nearly ten years ago in 2010. We challenged ourselves to provide deeper information for each topic. Family law can be a very tricky terrain to navigate. Understanding one’s responsibilities with respect to child support raises a lot of questions for parents and guardians, which we hope to outline and answer here.

father and child hands

  1. What is Child Support?

All dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child.

This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody). Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

Learn more about Child Support:

Common Questions About Child Support in Ontario

Child Support in Ontario: An Introduction to Child Custody

Introduction to Ontario Child Custody: How do Decisions Get Made

Child Support 101: The Details of Ontario Child Support

 

  1. Parents and Guardians

Parent or guardian can be the birth mother or father, an adoptive parent, or step-parent, who has been married to someone with children, or who has lived as a couple with someone with children, and who has shown an intention to treat those children as members of his or her own family.

Learn more about Parents and Family Law:

Ontario Custody and Access: Who is Entitled to the Child?

Ontario Child Custody: Who is Considered a Parent?

When a Non-Parent Wants Custody of a Child

 

  1. Who Pays Child Support

Child Support is the legal responsibility of parents or guardians to provide financial support for all dependent children. When there is an arrangement in which a child lives primarily with one of the parents or guardians they are assumed to have “custody” of that child and bear the day-to-day expenses of raising them; however, they may be entitled to receive child support from the other parent. This entitlement to child support may continue even if the custodial parent remarries or starts to live with someone else.

The amount of child support is usually set according to the Child Support Guidelines. More than one parent can have a legal duty to pay child support for the same child. For example, if a parent with custody of a child separates from their marriage or common-law spouse who is not the child’s birth parent, both the child’s other birth parent and the step-parent may have a legal duty to pay child support.

Learn more about the legal responsibility to pay child support:

Who Pays Child Support in Ontario?

Top Four Questions About the Children of Common-Law Relationships

Can an Ontario Support Agreement or Order be changed?

Business Owners Beware: Court Can Force Your Hand to Compel Appropriate Child Support

Can a Parent Replace Child Support…with Gifts?

 

  1. When to Apply for Child Support

Applying for child support is usually done right after separation or when applying for a divorce but can be applied for at any time thereafter. It is usually best to deal with these matters as early as possible and when sorting out the custody of the children. In the beginning, parents and guardians may feel they don’t want or need the support but as time goes on and the expense of raising children increases the need may arise at which time they can apply, even after divorce or settlement of matters arising from the separation have been dealt with. Under some circumstances the court has awarded custody and support while the parents or guardians are living separately under one roof but the court usually doesn’t make an order until one of the parents or guardians have physically moved out.

If the social and emotional relationship between the step-parent and child have disbanded for a lengthy period of time, it is less likely that the court would order the step-parent to pay child support.

Learn more about application:

• Video: When Can a Parent Apply for Child Support?

• Video: When do the Child Support Guidelines Apply?

 

  1. When Does Child Support End?

Child support must be paid if a child is still a dependant and they are under 18 years of age.  However, the following circumstances and criteria can terminate responsibility of child support:

  • the child has married;
  • they are 16 or older and have voluntarily left parental control;

There are situations where even if the child has turned 18 years of age they are still considered a dependant. For instance, any situation where the child is unable to support themselves due to any of the following:

  • they have a disability or illness;
  • they are attending school full-time;

In a situation where the child is 18 years of age or older and is living away from home because they are attending school, child support may have to be paid if the child’s primary residence is with the parent with custody. This circumstance usually requires child support to be paid until the child is 22 or receives a post-secondary degree or diploma.

In some of these situations, a judge can order the child support to continue past this point. If the judge decides child support must be paid past the age of 18, they will take into consideration how much the child has in earnings or income before determining the amount of child support to be paid.

Learn more about criteria for child support:

Does the Age of the Child Affect Child Support in Ontario?

What Happens if Kids Skip School?

How Long Does Child Support Continue in Ontario?

 

  1. What is a Child Support Agreement?

How the child support is paid and how much is paid, is determined with a Support Agreement. There are three different ways parents can obtain a Support Agreement such as:

  • In a situation where the parents can work together to form a Support Agreement, it is encouraged that they look at the Child Support Guidelines to find out the amount a judge would likely order. The paying parent will have to give complete and true information about their income. It is suggested that one parent should have a lawyer put the agreement in writing and that the other parent get a different lawyer to review it, before signing it. This way, both parents will know the agreement says what they intended it to say, while also protecting their rights and their children’s rights.
  • If the parents need help working out a Support Agreement then they can see a mediator who will help them come to an agreement they both can accept. The mediator is an unbiased party that does not offer legal advice. In this situation it is still recommended that the agreement is reviewed by both parent’s independent lawyers before signing, and filing with the court.
  • If the parents cannot agree on a Support Agreement then both parents should hire their own lawyer. The lawyers can then attempt to negotiate support terms that both parents can agree upon. If no agreement can be reached then they will go to court and ask a judge to determine support. The judge will then make a court order that states how much child support is required to be paid.

Learn more about paying for child support:

• Video: Ontario Child Support: How do you arrange for Support to be paid?

• Video: How Base Child Support is calculated

• Video: How are Child Payments Taxed?

 

  1. Access When Child Support is Not Paid

Even if child support is not paid, a parent should not keep the child from seeing their other parent. It is assumed that it is generally good for a child to have a relationship with both parents. Keeping the child from seeing their other parent is considered punishing the child and the law will not punish the child due to their parent failing to pay child support.

Parents who do not have custody are usually given “access” to the children so that they can spend time together and maintain their relationship. The only way access can be refused or limited, is if the parent’s behaviour is likely to cause harm to the child, or harm the child in anyway. The courts will not refuse access because the parent fails to pay child support, and the parent with custody should not refuse access for this reason either. There are ways to obtain child support from a non-paying parent without refusing access.

Learn more about Child Support and Access:

Can parents be kept from seeing their children if they do not pay their child support?

Child Support and Access Rights in Ontario

 

  1. Enforcement of Child Support in Ontario

Enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.

Learn more about child support enforcement:

• Video: Enforcement of Child Support in Ontario

The Role and Power of FRO

 

  1. How Can FRO Collect Child Support?

The FRO (Family Responsibility Office) uses different ways to get the payments that are owed. It can:

  • get the payments directly from the parent who is supposed to pay support
  • have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)
  • register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes
  • garnish (take money from) the bank account of a parent who fails to pay support
  • garnish up to 50% of a joint bank account that he or she has with someone else, or
  • make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

  • suspending their driver’s licences
  • reporting them to the credit bureau so that it will be difficult for them to get loans, or
  • cancelling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.

Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.

Learn more about the FRO:

Top 5 Facts About the FRO

Top 5 Tips for Dealing with the Family Responsibility Office

 

  1. How to Reduce Child Support

Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.

FRO can be contacted by calling 1-800-267-7263 or you can also visit their website.

Learn more about reducing child support:

Varying Child Support – How long is Too Long to Wait

Could Trucker Dad Avoid Child Support Due to Dizziness?


Russell Alexander Collaborative Family Lawyers has been providing answers and solutions to child support questions for over twenty years. If you need assistance determining whether you should be receiving child support for your child or collecting your support from the other parent, or if you believe that you should no longer be paying child support, we are here to help.

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

GM Oshawa Assembly Plant Closing & Divorce

The Ghosts of GM: Past, Present and Future

On November 26, 2018, the General Motors Company (GM) announced that it will cease allocating new product to its Oshawa assembly plant beyond the end of 2019. This came as a shock to the 2,500 employees who work at the Oshawa plant and the many more who depend on their income. While the jury is still out on whether GM will be laying off or re-training its 2,500 employees, one thing is certain—a large cohort of GM’s employees stand to lose their livelihood.

Whether laid off or re-trained, employees who have a potential, current or settled family law matter will need to govern themselves wisely to weather the impact that closure will have on their day-to-day lives. Accordingly, this post explores the likely, and, not so likely, family law implications of GM’s closure of its once thriving Oshawa assembly plant.

The Ghost of GM Past: Settled Family Law Matters

If your family law matter was previously settled by way of a Separation Agreement or Final Order, the loss of employment income may trigger a review of child support or spousal support, or parenting.

Support obligations

It is likely that the loss of employment income will mean that you cannot afford to pay child support and/or spousal support as set out in a Separation Agreement or Final Order. In the case of a Separation Agreement, you may be able to rely on a built-in review clause to revisit the issue of support. Most Separation Agreements contain a dispute resolution clause which may be the first place to start in this endeavor. In the case of a Final Order, you will likely want to bring a Motion to Change a Final Order if you and your ex-spouse cannot agree on the appropriate adjustment out of court. A qualified lawyer can assist with making this process as seamless as possible.

Parenting

It is not likely that your loss of income will impact settled parenting arrangements. However, you may find yourself needing to reduce your parenting time with the children in order to focus on finding a new job. In this scenario, you may likely need to rely on the dispute resolution clause in your Separation Agreement or bring a Motion to Change a Final Order altering an access schedule in order to achieve the desired relief.

The Ghost of GM Present: Current Family Law Matters

If you are currently going through a legal separation from your spouse, the loss of employment income may affect a number of aspects in your separation, including but not limited to, support, assets and liabilities and alternative career planning.

Child support and spousal support

You may have credible grounds by which to vary a temporary Order for support in your legal proceeding. As an Order for support would have been based on your GM income at the time, the Order may be varied by the new circumstances. You may seek such relief at a pre-trial conference or by bringing a motion. It is not likely, however, that your loss of income resulting from being laid off will extinguish your entire obligation to pay support. Rather, you may still be required to pay support on the basis of employment insurance income or imputed income. However, the extent of any such continuing obligation depends on the particular facts of your case.

Assets and liabilities

The loss of employment income may result in a budgetary deficit, impacting your ability to keep the matrimonial home. If you are no longer able to maintain your share of the mortgage and bills associated with the matrimonial home, it may have to be listed for sale—which may be the most poignant of all of your post-closure concerns. Worry not. There may be options available to you for preventing this outcome such as, a buy-out, borrowing or disposition of investments, RRSPs, RRIFs or your GM pension. However, the viability of these options to save the matrimonial home will need to be assessed against the surrounding issues in your proceeding such as support, equalization and other issues relevant to your case.

Alternative career planning

You may wish to delay your re-entry into the workforce to obtain credentials in a more stable industry. While this will yield economic benefits in the long run, your current financial obligations of support and solvency will be deciding factors. Delayed income generation caused by alternative career training may likely be manageable provided that the financial obligations of your ongoing separation are minimal. However, your freedom and ability to pursue such an undertaking may require a corresponding compromise and will depend on the unique facts of your case.

The Ghost of GM Future: Potential Family Law Matters

If you have been planning to separate from your spouse, the loss of employment income can have significant family law implications on a number of obligations arising in separation, including but not limited to, support, parenting and family property.

Child support and spousal support

It is not likely that being laid off will defer support obligations. You may be obligated to pay support if you receive employment insurance income sufficient enough to meet legislative minimums. If you do not qualify for employment insurance, your spouse may still seek support by imputing an income on you commensurate with your work experience, whereby you will be required to pay support. In either scenario, the obligation to pay child support and spousal support may survive the loss of income depending on the facts of your particular situation.

Parenting

It is likely that being laid off will mean expanded parenting time. While increased parenting time may yield social benefits, it may also impinge on your economic rehabilitation. Your spouse may expect you to dedicate your new found time to caring for young children who are not in school. These, and other significant changes to parenting time after initiating your separation, may likely hinder your re-entry into the workforce. A properly drafted parenting agreement can help by moderating unrealistic expectations.

Family property

You will have a legal duty upon separating from your spouse to avoid the reckless depletion of family property. While you may wish to list personal or real property for sale to help make ends meet, it is not likely that you will be able to freely dispose of family property after your date of separation without your spouse’s prior consent or proper accounting. You will have to be mindful of how you manage family property as mismanagement may prejudice the equalization of net family property and may result in a Court order.

Bottom line

The closure of GM’s Oshawa assembly plant in 2019 will disrupt the lives of many families, the impact of which might be felt most by those dealing with a potential, current or settled family law matter. Contacting a lawyer for legal advice tailored to the particular facts of your case is a proven way to mitigate the effects of an imminent disruption to income. While it may seem impossible to afford a lawyer at this time, there may be options available to finance the cost of much-needed legal representation.

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.

Collaborative Law Practice – Coming to More Ontario Law Firms Near You

Collaborative Law Practice – Coming to More Ontario Law Firms Near You

As the name of my firm says, here at Russell Alexander Collaborative Family Lawyers we practice what is known as “Collaborative Family Law”, which is a voluntary, contract-based Alternative Dispute Resolution (ADR) process for those seeking to negotiate a resolution of their Family Law dispute, rather than having one imposed on them by a court or an arbitrator. In many ways, it’s similar to mediation, except that it usually does not involve the participation of a neutral third party to help the couple reach a resolution.

Although use of the Collaborative Law process is perhaps not as widespread in Ontario as in other North American jurisdictions, the release on October 27, 2016 of the Ontario Collaborative Law Federation’s “Draft Accreditation Standards” paves the way for an even broader presence in the province. These Accreditation Standards aim to bring consistency, professionalism and heightened standards of competence to practitioners of Collaborative Law (like my firm).

The Ontario Collaborative Law Federation currently represents 18 groups of specially-trained professionals across the province, and imposes rigorous standards for membership. (For example, in the case of Collaborative Legal Professionals, it requires the completion of at least 40 hours of collaborative training, including interest-based negotiation skills training and Collaborative Family Law skills training).

Moreover, all Collaborative lawyers are already licensed and regulated members of the legal profession, and in their role as advocates for their clients, are already duty-bound to adhere to certain professional standards imposed by the Law Society of Upper Canada.

But once approved, the Draft Accreditation Standards will provide an additional layer of obligation and competence for all professionals who participate in the Collaborative Law process.

Accreditation is voluntary, but those who will choose to obtain this designation will have to adhere to the Accreditation Standards’ mandatory requirements (once they are approved); however, those who opt not to apply for accreditation are not prohibited from engaging in Collaborative Law provided they adhere to the same requirements.

In other words, once they are in final form, the Accreditation Standards will effectively govern both those who choose to seek accreditation, and those who do not.

This will be a welcome addition to the Collaborative Law field, and by extension a good development for Family Law litigants in Ontario. In the U.S., since the year 2010 there is already a Uniform Collaborative Law Rules and Act, which among other things standardizes the most important features of Collaborative Law participation agreements between the parties, and requires Collaborative lawyers to take certain steps and make certain inquiries of their clients.

In Canada, the use of Collaborative Law has perhaps been somewhat piecemeal in nature, but it’s growing. The Alberta Family Law Act (in section 5), the British Columbia Family Law Act (in section 8), and Saskatchewan Family Property Act (in section 44.1), each require lawyers who act on behalf of a spouse to inform him or her of the Collaborative Law service that might help resolve their matters. The legislative counterpart in Ontario (i.e. the Family Law Act) does not contain such a requirement, but it’s likely on the horizon soon.

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

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