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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!

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Divorce Information Centre – New Section

chalk board broken heart game over

Divorce Information Centre announces an additional resource today titled, Separation – The Beginning of the End to provide access to information including:

Family Law Now Podcast – Episode 1: Top 10 Things You Should Know About Child Support

Episode Info

On this episode, hosted by Russell Alexander with special guest Michelle Mulchan, two family lawyers discuss everything from the basics to the complexities of child support. Tune in to Family Law Now to learn more!

Family Law Now podcast logo retro mic speach bubbleFamily Law Now

We are thrilled to launch our very own podcast series: Family Law Now. The new series delivers useful commentary and insights into timeless and trending family law issues. Family Law Now is free of charge to registered users and provides a convenient, low-commitment resource by which busy individuals who don’t have time to read long-winded articles can get answers to their legal questions, on-the-go.

Family Law Now is hosted by Russell Alexander and features a guest speaker with whom he presents a meaningful review and analysis of family law issues. With over 20 years’ experience helping families resolve their legal issues, Russell has developed a remarkable understanding of family law issues and is eager to share his jewels of wisdom with the listening public.

The podcast Family Law Now marks the culmination of a long-standing passion project and brings us one step closer to realizing our goal of democratizing access to information concerning family law matters. Tune in!

As always, please feel free to explore our articles and written commentary currently available on our blog, FamilyLLB, and online resource hub, Divorce Information Centre. The show notes are available for your reference below.


Show Notes:

Federal Child Support Advisory Guidelines (CSAG)

Screenshots included for illustrative purposes only and do not represent a complete reproduction of support tables contained in the Federal Child Support Advisory Guidelines”

child support guideline chart table for only childchild support guidelines for two children

CSAG sections (reproduced)

Section 24 – Failure to comply with court order

Where a spouse fails to comply with an order issued on the basis of an application under paragraph 22(1)(b), the court may

(a) strike out any of the spouse’s pleadings;

(b) make a contempt order against the spouse;

(c) proceed to a hearing, in the course of which it may draw an adverse inference against the spouse and impute income to that spouse in such amount as it considers appropriate; and

(d) award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.

Section 19 – Imputing income

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

  • Reasonableness of expenses

(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

  • SOR/2000-337, s. 5

Section 9 – Shared custody

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Family Law Rules sections (reproduced)

 

Rule 23 – Evidence and Trial (excerpt or provisions relevant to ‘default hearing’)

 

Affidavit Evidence at Uncontested Trial

 

(22) At an uncontested trial, evidence by affidavit in Form 14A or Form 23C and, if applicable, Form 35.1 may be used without an order under clause 1 (7.2) (i), unless the court directs that oral evidence must be given.  O. Reg. 114/99, r. 23 (22); O. Reg. 202/01, s. 6 (5); O. Reg. 6/10, s. 8 (3); O. Reg. 69/15, s. 9 (5).

 

Rule 24 – Costs

 

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

 

  1. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.  O. Reg. 114/99, r. 24 (1).

 

NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY

 

(2) The presumption does not apply in a child protection case or to a party that is a government agency.  O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).

 

COURT’S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY

 

(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.  O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).

 

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

 

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.  O. Reg. 114/99, r. 24 (4).

 

DECISION ON REASONABLENESS

 

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

 

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

 

(b) the reasonableness of any offer the party made; and

 

(c) any offer the party withdrew or failed to accept.  O. Reg. 114/99, r. 24 (5).

 

DIVIDED SUCCESS

 

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.  O. Reg. 114/99, r. 24 (6).

 

ABSENT OR UNPREPARED PARTY

 

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.  O. Reg. 114/99, r. 24 (7); O. Reg. 235/16, s. 4 (1).

 

BAD FAITH

 

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.  O. Reg. 114/99, r. 24 (8).

 

COSTS CAUSED BY FAULT OF LAWYER OR AGENT

 

(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

 

(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;

 

(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;

 

(c) order the lawyer or agent personally to pay the costs of any party; and

 

(d) order that a copy of an order under this subrule be given to the client.  O. Reg. 114/99, r. 24 (9).

 

DECIDING COSTS

 

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

 

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

 

(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.

 

(10.1) Revoked: O. Reg. 298/18, s. 14.

 

SAME

 

(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.

 

Setting Costs Amounts

 

(12) In setting the amount of costs, the court shall consider,

 

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

 

(i) each party’s behaviour,

 

(ii) the time spent by each party,

 

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

 

(iv) any legal fees, including the number of lawyers and their rates,

 

(v) any expert witness fees, including the number of experts and their rates,

 

(vi) any other expenses properly paid or payable; and

 

(b) any other relevant matter. O. Reg. 298/18, s. 14.

 

Supporting Materials

 

(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. O. Reg. 298/18, s. 14.

 

ORDER FOR SECURITY FOR COSTS

 

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

 

  1. A party ordinarily resides outside Ontario.

 

  1. A party has an order against the other party for costs that remains unpaid, in the same case or another case.

 

  1. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.

 

  1. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.

 

  1. A statute entitles the party to security for costs.  O. Reg. 114/99, r. 24 (13).

 

AMOUNT AND FORM OF SECURITY

 

(14) The judge shall determine the amount of the security, its form and the method of giving it.  O. Reg. 114/99, r. 24 (14).

 

EFFECT OF ORDER FOR SECURITY

 

(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise.  O. Reg. 114/99, r. 24 (15).

 

Failure to Give Security

 

(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then subrule (15) no longer applies. O. Reg. 322/13, s. 14.

 

SECURITY MAY BE CHANGED

 

(17) The amount of the security, its form and the method of giving it may be changed by order at any time.  O. Reg. 114/99, r. 24 (17).

 

PAYMENT OF EXPENSES

 

(18) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 418/18, s. 1.

 

Family Responsibility Office (FRO) – sections relating to Support Deduction Orders (SDO’s) and Support Deduction Order Information Forms (SDOIFs)

 

Director to enforce support deduction orders

 

20 (1) The Director shall enforce a support deduction order that is filed in the Director’s office, subject to section 7, to any change made to the support deduction order and to any alternative payment order made under section 28, until the related support order is terminated and there are no arrears owing or until the support order and support deduction order are withdrawn.  2005, c. 16, s. 9.

 

Notice of support deduction order to income sources

 

(2) The Director may serve a notice of a support deduction order to each income source from whom the Director is seeking payment, and may serve new notices when the amount to be paid under a support order changes or arrears are owing.  1996, c. 31, s. 20 (2).

 

Contents of notice

 

(3) The notice shall set out the amount of support owed by the payor under the support order and may also set out any amount in arrears under the support order and the amount required to be paid by the income source to the Director.  1996, c. 31, s. 20 (3).

 

Notice to payor

 

(4) The Director shall send to the payor a copy of every notice sent under subsection (2).  1996, c. 31, s. 20 (4).

 

Notice deemed garnishment for Family Orders and Agreements Enforcement Assistance Act (Canada)

 

(5) A notice of a support deduction order shall be deemed to be a notice of garnishment made under provincial garnishment law for the purposes of the Family Orders and Agreements Enforcement Assistance Act (Canada).  1996, c. 31, s. 20 (5).

 

Support deduction order not affected by stay of enforcement of support order

 

(6) The operation or enforcement of a support deduction order is not affected by an order staying the enforcement of the related support order unless the support order is also stayed.  1996, c. 31, s. 20 (6).

 

Contents of support order

 

9 (1) Every support order made by an Ontario court, other than a provisional order, shall state in its operative part that unless the order is withdrawn from the Director’s office, it shall be enforced by the Director and that amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.  1996, c. 31, s. 9 (1).

 

Court may require that order may not be withdrawn

 

(2) If the court considers it appropriate to do so, it may state in the operative part of the order, instead of the wording prescribed by subsection (1), that the order and the related support deduction order shall be enforced by the Director and that they cannot be withdrawn from the Director’s office.  1996, c. 31, s. 9 (2).

 

Form of support deduction order

 

11 (1) A support deduction order shall be in the form prescribed by the regulations.  1996, c. 31, s. 11 (1).

 

Information re payor, income source

 

(2) Before making a support deduction order, the court shall make such inquiries of the parties as it considers necessary to determine the names and addresses of each income source of the payor and the amounts paid to the payor by each income source and shall make such other inquiries to obtain information as may be prescribed by the regulations.  1996, c. 31, s. 11 (2).

 

Same

 

(3) If the support order is sought on consent or by way of motion for judgment or if the making of the support order is uncontested, the parties shall give the court the particulars described in subsection (2) and such other information as may be prescribed by the regulations.  1996, c. 31, s. 11 (3).

 

Completion of form, etc.

 

(4) The support deduction order shall be completed and signed by the court, or by the clerk or registrar of the court, at the time the support order is made and shall be entered in the court records promptly after it is signed, even if the support order may not have been settled or signed at that time.  1996, c. 31, s. 11 (4).

 

Wednesday’s Video Clip: Litigation vs Collaborative Practice

Wednesday’s Video Clip: Litigation vs Collaborative Practice

What is the difference between a litigation file and a collaborative practice file?

Usually the clients find the result much more satisfactory from a cp file, as appose to having a result imposed upon them by the court in a litigation file.

What is litigation?

Litigation is a typical traditional court file. There are two lawyers involved. The parties usually take an adversarial position that involves positional bargaining. This usually involves a contested court proceeding. This results in a negotiated agreement.

What if the parties of a litigation file cannot come to an agreement?

If the parties cannot come to an agreement, the court imposes a result on both parties.

What is collaborative practice?

In a collaborative practice file, we focus on goals and interests of both parties. Again, both parties have lawyers. It is considered a respectful and peaceful process where communication should be appropriate at all times. The parties will have communication guidelines.

A collaborative practice file is likely to involve a full team. This often includes a neutral family professional and a neutral financial professional. Other professionals can also join the team as needed including business valuators and/or corporate or tax specialists.

Not only do the parties agree not to go to court, but the lawyers must agree that they’re not going to go to court; They also agree not to take advantage of each other’s mistakes.

An important part in the collaborative process is that there will be full and complete disclosure. Fairness is subjective. The goal is to come up with an acceptable result for both parties that satisfies goals and interests.

Can Husband Be Forced to Obtain a Separate Home Appraisal?

beautiful house at sunset

Can Husband Be Forced to Obtain a Separate Home Appraisal?

In a recent case called Kraemer v. Kraemer, the court confirmed two important procedural points relating to property valuation:

  • The divorcing spouse who “owns” or controls an asset has the primary obligation to obtain an accurate valuation of it; and
  • In the event of a dispute as to an asset’s value, each spouse may be obliged to get a separate expert appraisal.

The couple had been married for almost 15 years and had three children.   In the course of their divorce proceedings, they ended up asking the court to help with their disagreement over the proper value of the matrimonial home they previously shared.

The wife had had it formally appraised at $735,000.   In contrast, the husband claimed it was worth $800,000, but offered no evidence to support that figure.  He resisted getting an expert appraisal of his own.

To this last point, the court replied:

Mr. Kraemer takes the position that he cannot be required to value the home and, essentially, the value will be decided when the house is sold. In my view, he is wrong in that position.

Indeed, the husband’s (incorrect) position overlooked the core principles that in Family Law proceedings:

  • Each party just take disclosure “very seriously”, and is duty-bound to provide meaningful disclosure of asset values.
  • Each spouse has an obligation to provide credible, realistic values, including independent valuations – not a “guess” or a “fictional amount”.
  • A failure to provide credible evidence to support a value may result in a less-advantageous value being assigned by the court.

On the issue of which spouse is responsible for obtaining an accurate valuation:  The primary responsibility for establishing an asset’s accurate value on the valuation date lies with the spouse who “owns” or controls it.  This is particularly true if that spouse makes an assertion in his or her filed affidavit about the asset’s value.  The spouse then has the burden of proving the stated value is correct;  this may require the input of an expert.  If the other spouse does not agree to the value proposed, then he or she can respond with a valuation from a different expert entirely.

Having reasoned this way, the court found that the husband in this case was obliged by law to hire his own expert to provide a separate, accurate valuation of the matrimonial home.   The court also declined the husband’s requires to treat the latest valuation as a shared expense;  it noted that the wife had already paid for her own valuation, so the overall fees for both appraisals would effectively be split between them.

For the full text of the decision, see:

Kraemer v. Kraemer, 2019 

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

 

Divorce Law 101:  Which Former Spouse Gets the Half-Billion Dollar Yacht?

yacht on water

Divorce Law 101:  Which Former Spouse Gets the Half-Billion Dollar Yacht?

Upon deciding to split up, many couples have to squabble over things like who gets to keep the high-end coffee maker or toaster they received as a wedding gift.  But as divorcing spouses go, it is rare to have to argue over which of them gets the family’s CDN$584 million mega-yacht.

This was the plight of Russian billionaire Farkad Akhmedov and his former wife Tatiana.  As part of their 2016 divorce settlement – which is one of the costliest in the world – Farkad had been ordered by a U.K. court to pay over about 40 percent of his vast fortune to his ex-wife. But the ownership of the 115-metre mega-yacht called “Luna” was still under contention; when Farkad failed to pay Tatiana the CDN$795 million as ordered, she obtained a freezing order from a U.K. court in 2018 that purported to apply to Dubai, where the yacht was docked.  A Dubai court affirmed that the U.K. judgment declaring Tatiana the owner could be enforced.  Local Dubai authorities went ahead and impounded the vessel.

But recently, a Dubai Court of Appeal ruled in Farkad’s favour;  it agreed with his position that the yacht was part of a matrimonial dispute, not a maritime dispute, and that Shariah law should govern the ownership issue. Since the 2016 U.K. order relating to the yacht was ill-founded, the Dubai seizure was also improper.  The Appeal Court added that the Dubai ruling, purporting to find that the U.K. judgment was enforceable in that jurisdiction, was also in error.

It is unlikely that this will be the end of the matter: It is reported that Tatiana intends to resume pursuing her various marriage- and property-related claims in the U.K. courts.  It is also expected that the case will also be forwarded to another Dubai court for a further hearing.

Meanwhile, the mega-yacht is currently still docked in Dubai pending resolution of which of these former spouses is the owner, and under which jurisdiction’s laws.  The yacht is described as having nine decks, two helicopter landing pads, an on-board swimming pool, a mini-submarine, and space for 50 crew.

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

Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

In a recent Blog we talked about an Ontario Court of Appeal case called M. v. F.,  where Justice Benotto made some observations about the “win/lose” mentality of provincial child custody laws.  Specifically, she noted that:

“For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.”

That call-to-arms by Justice Benotto has finally been heeded by the federal government, in the form of upcoming changes to the Divorce Act. Those amendments, which are found in Bill C-78 but are not yet in force, have an unwieldy title:  “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”.

Although these Bill C-78 amendments implement a broad and ambitious range of changes to existing Family legislation, one of the more important ones is to replace the terms “custody” and “access” in the Divorce Act with more neutral terms like “parenting orders” and “contact orders”, respectively.  These newer concepts also give courts an embedded opportunity to give specific directions as to the care of children.

That revised Divorce Act wording also acknowledges the fact that family law academics – and judges like Justice Benotto in the M. v. F. case – have long encouraged this tweak to the terminology.  It eliminates the “winner/loser syndrome” she spoke of, as well as the unproductive mindset that the current custody regime fosters.  By allowing courts to grant orders for “parenting” and “contact” instead, the level of parental conflict will be reduced, and by extension the best interests of children will be promoted.

As yet, there is no specific date announced for the implementation of the Divorce Act changes, but they are expected to be rolled out at some point in 2019.

Is this a promising development in the legislation around custody? Will it work in helping to reduce parental conflict, as hoped?  What are your thoughts?

For a copy of the legislative amendments to the Divorce Act, see here.

M v. F., 2015 

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

Divorce Information Centre – New Section

resource

Divorce Information Centre announced a new section today titled, Working With Your Divorce Lawyer. The section provides access to information including:

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