Category Archive: divorce

1. Jointly Retained Engagements – Valuations Perspective

   June 8, 2020 9:49 am Comments Off on Jointly Retained Engagements – Valuations Perspective

   

   by Trevor Hood

   Original post: https://sbpartners.ca/jointly-retained-engagements

   We are often asked to be jointly retained in family law matters where one spouse is a business owner. We are engaged by both spouses to provide an independent assessment of the value of the business interests for the purposes of dividing matrimonial assets or of the income available to the business owner for purposes of child or spousal support. Until recently, the decision of the joint retention was that of the parties but that is now changing.

   Appointment of a Joint Expert by the Court

   Recent changes to the Family Law Rules (the “Rules”) effective September 1, 2019 has expanded Rule 20.1 related to independent experts into three separate Rules including the new Rule 20.3 in which section (1) provides for the Appointment of Expert by Court[1] and states (1):

   The court may, on motion or on its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case.

   While the new Rules do not go to the extreme of requiring a joint expert for all family-law related business valuation reports like in British Columbia, there will be an expected trend towards more jointly retained Chartered Business Valuators (“CBV’s”). With that in mind, we wanted to highlight five key challenges and practical considerations when dealing with jointly retained valuation experts:

   • Aside from avoiding dueling experts, the biggest potential benefit is reduced costs to the parties. However, it is our experience that the initial fees to prepare a joint report will be slightly higher given the steps required to maintain a transparent and open process and to ensure both parties are able to provide their input into the process. The larger cost savings comes from having a single expert in the court process and in testifying at trial.
   • The exception to the above is when the parties decide to hire a “shadow” CBV’s to advise and assist the parties through the valuation process.
   • The biggest challenge in our experience is ensuring that all parties are on the same page with the scope and level of work being completed. Whether it be the level of valuation report being used or the amount of forensic investigation being conducted, we have had a number of circumstances where, part way through the process, one party expresses expectations that are beyond the agreed upon scope of work and level of reporting, which in turn creates conflict.
   • Another challenge tends to be the structuring of fees and what happens when one of the parties creates an obstacle that results in additional fees beyond the original scope of the mandate. Whether it is failure to provide disclosure or making enquiries beyond the scope of the engagement, it is important that parameters are established around the payment of fees and the communication when these issues arise.
   • Despite best efforts, situations will arise where one of the parties may feel that the expert is not independent and is perceived as being biased in the favour of the other party. Ensuring that open and transparent communication occurs with all parties throughout the process is a vital step to mitigating the occurrence of this issue. Engagement letters should clearly document the communication process and steps surrounding the delivery of the report and the parties’ ability to provide feedback in support of full transparency.

   [1] Ontario Regulation 250/19: Family Law Rules Filed July 25, 2019 effective September 1, 2019

    

2. Acknowledging Fear

   April 3, 2017 1:57 pm Comments Off on Acknowledging Fear

   
   By Noel da Silva

   There is no getting around the role that fear plays in reparation and divorce. Every front line professional whether they are Family Health Professionals, Financial Professionals, Coaches or Lawyers, can attest to this.

   The fear factor!

   There are many sources of fear.

   Fear can include fear of the unknown. Separation for most people a circumstance they are not familiar with. Terrible apprehension comes from asking the question “Am I going to lose my kids” in a custody and access dispute. “How am I going to manage financially”, is another very real concern. People involved in a breakup are very afraid of publicity. Sometimes spouses or partners do and say awful things to each other. Police and the Children Aid Society have often had to become involved with families. At other times it is the teacher and schools that discover the families difficult problems.

   All the professionals who help separating families in distress have a unique opportunity. We can best hold by steering our clients away from conflict towards settlement oriented solutions that reduce conflict and its damage to the children and spouses.

   A conversation that produces an accurate detailing of the steps forward to obtain a separation agreement and closure is the first step towards calming the person’s fear. Screening for domestic violence which is a necessary step in keeping abused spouses safe can be calming once the abused spouse is in contact with a family health professional healing can start.

   Even knowing the worst that can happen, while not scaring the person can have a calming effect. This won’t mean having to accept a negative ¬result or position. It does mean formulating a plan, understanding next steps and actually taking those steps this is crucial towards getting rid of the fear factor.

   Collaborative Law or Collaborative Practice is an excellent way to deal with fear. It allows for each parties concerns to be voiced and most importantly heard. Each spouse is allowed to speak from the heart and state what their goals are. This usually brings out the rational best in people. Even when a goal is to avoid problems or avoiding conflict is an expressed goal it is something concrete the professionals around the table at each collaborating settlement meeting need to understand and plan to deal with.

   Talk is not enough. It is when clients see actual progress being made that they can start to take a deep breath. When they understand that their active, informed participation in the collaborative process is important this can be calming as they themselves are taking steps to resolve the conflict.

   Clients find that the process of enquiry as to what each persons’ interests really are and what lies behind the positions they are taking is also calming as there is acknowledgement that they have been understood. Once a person in distress speaks; is heard and then is understood the next step in the collaborative process which is putting the options on the table for consideration, to solve each segment of the overall conflict, can take place.

   Acknowledging and explaining our fears is part of the healing process for everyone. So there is no need to be afraid of fear and its expression. Creative solutions customized to meet each families needs, crafted into a separation agreement that reasonably protects both parties and their children is the best solution to conquering fear.

   Apprehension built up over many years cannot be entirely eliminated. The understanding possible within the collaborative process that the parties are still a family, except one that does not look the same, is very helpful. When continuing future support are also considered and built into to the separation agreement families using the process of Collaborative Practice gain an extra measure of assurance. They may even be ready to relax with a nice beverage.

   Noel da Silva is a Partner at Simmons da Silva LLP

   Email: noel@sdslawfirm.com
   Telephone: 905-457-1660 ext 229

   Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

3. Involving Collaborative Lawyers in the Mediation Process

   December 14, 2012 12:20 pm Leave a Comment

   

   by Marie Nickle LL.B LL.M AccFm

   One of the problems with the mediation process is that the independent legal advice lawyers are not involved in the thought processes or the discussions taking place in the mediation sessions.  The option generating that takes place in mediation involves in-depth thought and discussions of the practicalities of any given arrangement, being the things that make sense in the day-to-day lives of the parties.  Nor have the lawyers been involved in the discussions that take place concerning the parties’ concerns and values and how these expressed concerns and values play a considerable part in arriving at agreements.  The mediation process concentrates on many things for the parties, including legal obligations and entitlements.  However, the ILA (Independent Legal Advice) lawyers are advising only on legal obligations and entitlements after completion of the mediation and often, agreements reached are scuttled, leaving parties frustrated and angry at having paid for a process that didn’t deliver.  The result is that mediation is brought into question as a viable alternative dispute mechanism.  As well, the reputation of the mediator is not well served.

   As an example, I was involved in a case, giving ILA to a wife on a comprehensive mediated agreement.  The mediation had taken place 3 years earlier by a very well known and respected mediator.  The parties, although advised by the mediator to obtain ILA, did not.  Instead they procrastinated and lived within the spirit of the mediation report for 3 years, at which time circumstances dictated the need to conclude and turn the terms into a legally binding document.  In my conversations with the ILA lawyer for the husband, he(the lawyer) proceeded to malign the mediator, offering comments to the effect that the mediator should face consequences for assisting the parties with what he viewed to be an imbalanced agreement in my client’s favour.  He (the lawyer) was not prepared to “allow” his client to sign the agreement.  The result was that the negotiations had to start afresh between us on behalf of the parties.  Both parties felt they had wasted their money in the mediation process and neither were prepared to recommend it.

   A way to resolve this is to have the parties represented by Collaboratively trained legal counsel at the outset of the mediation process.  The lawyers do not necessarily have to be involved in every meeting, although this would be ideal.  At a minimum, they would be available to provide their respective clients with legal advice and input along the way, ensuring no surprises at the end of the process.

   The cost is still less than a court process, which is the only meaningful comparison when discussing the cost of any resolution process.

   Marie B. NickleThe Galleria 204-1715 Lakeshore Rd. West Mississauga, Ontario L5J 1J6

   Profession: Family Law Lawyer, Mediator, Collaborative Trainer Tel: 905-823-1232 Fax: 905-823-7104 mariebnickle@bellnet.ca www.mbnlegalresolutions.com

4. Trends: Census Data on Families, Households and Marital Status

   December 4, 2012 10:34 am Leave a Comment

   

   By Fareen L. Jamal

   On September 19, 2012, Statistics Canada released the 2011 Census data on families, households and marital status.  This event occurs only once a decade and it discloses important lessons regarding Canadian families and their living arrangements.  The new data reveals that individuals are choosing family structures that result in more complicated personal and legal relationships.

   Some of the highlights of the families, households and marital status survey for family law professionals are:

   • Between 2006 and 2011, the number of common-law couples rose 13.9%; more than four times the increase for married couples, which as 3.1%.
   • Same-sex couples account for 64,575 families in Canada, a 42.4% increase from 2006.  43,560 of these couples are in common-law relationships.
   • For the first time, common-law couples outnumbered lone-parent families in 2011.
   • 3,684,675 couples have children and approximately one eighth (12.6% or 464,335 families) are step families with one or more children and not biologically related to one of the parents.
   • 41% of step families are “complex” step families, whre there is at least one child or both parents as well as at least one child of one parent only.
   • Married couples declined from 91.6% of all families in 1961 to 67% in 2011.
   • 42.3% of young adults aged 20 to 29 live with their parents either because they never left it or because they returned home after living elsewhere.  This proportion was relatively unchanged from 2006, although it was well above the share of 32.1% in 1991 and 26.9% in 1981.  The proportion of young adults living with their parents was higher for those in their early 20’s compared with those in their late 20’s.  Young men were more likely to live at home than young women.

   These trends demonstrate an increase in competing family interests.  The families, households and marital status survey is rich with facts and analysis that will be of interest to family law professionals.  Click here to link tot he Statistics Canada Families, Households and Marital Status Report and data analysis: 

   http://www12.statcan.gc.ca/census-recensement/2011/as-sa/98-312-x/98-312-x2011001-eng.cfm

   Fareen Jamal
   Bales Beall LLP
   2501-1 Adelaide Street East
   Toronto, ON
   M5C 2V9

   Tel:  416-203-4538
   Fax: 416-203-8592
   fjamal@balesbeall.com

5. The Emotional Divorce

   October 3, 2012 11:13 am Leave a Comment

   by Fareen Jamal

   “What separates those who can obtain a smart divorce from those who can’t is this quality of being prepared to move on. They’ve done their mourning, to the extent that mourning is involved. And they have come to recognize that they are not victims. ‘This is what life has to offer. So let’s move on.”

   ~ Jeffery Wilson, cited in Deborah Moskovitch, The Smart Divorce, (Chicago: Chicago Review Press, 2007).

   Often, couples fail to properly address their grief following the breakdown of their relationship and the loss of their marriage. The grief of losing a life shared, your identity as a couple, your security and even your beliefs  If you fail to come to terms with the fact that you are divorcing emotionally from life as you know it, the legal process of divorce can become almost impossible. I have had many a file where the parties’ inability to let go of their anger blinded them from noticing the damage their decades of litigation had on their children and personal lives. They were going through the legal divorce failing to address their emotional divorce.

   Failure to identify this grief and to deal with it constructively can result in a long, arduous and expensive legal process.

   Arnold Schwarzenegger comments on the emotional impact of his divorce from Maria Shriver, after he fathered a love child with the couple’s housekeeper, in his upcoming book, Total Recall: My Unbelievable True Life Story. The New York Daily News revealed that Mr. Schwarzenegger continues to believe that he is in denial and still hopes for a reconciliation with Ms. Shriver.

   Divorcing couples must acknowledge that a divorce can divide assets and liabilities, and arrange for child or spousal support but it cannot punish your spouse for his or her bad behaviour during or after the marriage. It cannot guarantee that your support payments will be made or that access schedules will be smooth and problem-free. It cannot make your spouse change, nor will it return your life to the way it was.

   Collaborative family lawyers recognize and address the grief. Perhaps you need to give yourself a period of mourning. Then focus on how you want your life to look. Create a strong support network and recognize that you are not alone. Professional help through parenting experts, financial specialists and therapists can also help regain control of your life. Collaborative family lawyers routinely draw on other experts to assist in the process.

   As you deal with your grief, it will become easier to make legal decisions that are in your best interest. Divorce with dignity, and move on. And find a process that will support you in doing so.

   Fareen Jamal
   Bales Beall LLP
   2501-1 Adelaide Street East
   Toronto, ON
   M5C 2V9

   Tel:  416-203-4538
   Fax: 416-203-8592
   fjamal@balesbeall.com

    

6. Collaborative Family Law Saves Resources in the Future

   July 10, 2012 10:57 am Leave a Comment

   By Christine A. Torry

   Like many of my colleagues, I have learned some fundamental truths working in the field of family law for almost 30 years. Those lessons are what led many senior practitioners to endorse the use of collaborative practice for the resolution of family disputes.

   One of the most basic truths is that despite the wish that a client may have to never deal with an “ex” again, with few exceptions, an ongoing relationship will continue for many years, usually as parents or grandparents, or for financial support.

   The cases that have been resolved through the traditional court process have a high rate of return to the court, for future problems. Family separations involve ongoing rights and responsibilities whether dealing with the parenting and time share of children, child support or spousal support. And there are always changes in the future that need to be addressed. Children get older and want to change residence, perhaps live with the other parent. There are activities to decide upon, and whether they should be competitive level or recreational. Children go to university and the cost sharing has to be decided. One parent may believe a child should contribute to post-secondary education, and the other may want the child to experience Europe for the summer. A payor loses a job, or retires, and needs to have support changed. A recipient remarries. If the parties have not learned skills to help them negotiate and reach agreement on future changes, they revert to the first method used, such as court. They can’t reach agreements so they go to someone, like a judge, to make the decision for them. The cost is significant in terms of time and financial resources.

   As a family law lawyer, there are many clients who I represented in a court process, that come back to the expense of litigation when they need to change something in the original order.

   One client separated in 2001 and obtained a court order resolving custody, access, child support and division or property over a year later. They had 2 children; a boy born in 1988 and a girl born in 1993. In 2007, the matter returned to court as the son was in college living away from home, and the costs had to be sorted out. A court proceeding was needed as the parties could not reach an agreement directly. That took about a year of court time. The client returned to my office again this week, as the daughter is starting college in the fall and the cost sharing needs to be agreed to. It is likely that a further court action will be required to sort that out as well.

   In another situation, parties were married for 10 years and were involved in court litigation for 8 years to reach an agreement on all of their financial issues. Two years later the eldest child began University away from home. Another court proceeding is needed and takes the full four years of the child’s attendance at University to get resolved. They also have a son, who is in Grade 11. Likely another court proceeding will be required in 2 years when he starts university.

   A third situation was in litigation for 5 years, and was back in court on at least four occasions over the next 10 years to address issues, resulting from a payor’s lost job, and a child’s post-secondary school program extending beyond one degree.

   I have represented clients in collaborative proceedings for almost 10 years. Interestingly, not one has come to see me to deal with a change. They somehow manage to do it themselves. They recognize that they need to work together in the future, and invest in creating a working relationship through the use of the collaborative process, to help them solve disputes as they arise. More importantly they don’t see the solution from a win or lose perspective. They are able to work on solutions that address everyone’s interests, particularly the interests of their children.

   From my perspective, considering the anecdotal evidence, there are strong reasons why parties should choose a collaborative approach to resolving their separation. It is time and money well invested in their future.

   Christine A. Torry
   Willis & Torry, Barristers & Solicitors
   35 Queen Street South
   Mississauga, ON L5M 1K2
   Tel: 905-819-2970
   Fax: 905-819-8379