Tag Archive: collaborative divorce

1. Learning from our Clients – The requirement for a Standard Participation Agreement

   January 9, 2015 6:40 am Comments Off on Learning from our Clients – The requirement for a Standard Participation Agreement

   

   by Marian Gage

   As Collaborative practitioners we receive our most important feedback from the clients who retain us and choose this process.

   I’ve recently had the opportunity to speak with a former Collaborative Practice client about his experience with the process. He was not my client and I will call him “John Smith” although that is not his real name. It was not a good experience. It was certainly not the experience that we, the professionals, anticipate when we promote the process to potential clients. What went wrong? What can we learn from Mr. Smith’s unfortunate experience?

   Mr. Smith started out as all collaborative clients do. He chose a lawyer trained in Collaborative practice. He and his lawyer began communicating with his wife’s lawyer who also advertised herself as a trained Collaborative lawyer. But things quickly took a wrong turn when it came time to sign a Collaborative Participation Agreement.

   “(My lawyer) and I were asked to sign a collaborative agreement that excluded any disqualification clause and demanded mandatory arbitration if we failed to come to an agreement in 6 months.”

   The “disqualification clause” Mr. Smith refers to is the standard provision in the Collaborative Participation

   Agreement that provides that if either party terminates the process and begins litigation both parties must “start from scratch” with new lawyers and the collaborative lawyers participating in the process may not transition to a litigation process with their clients. Among other reasons this is intended to be a disincentive to litigation.

   Those of us familiar with the practice know that this is not only odd but in direct contrast with a process that has the goal of encouraging dialogue and negotiation without the threat of litigation looming in the background.

   Mr. Smith agreed that requiring all clients and lawyers to sign a standard participation agreement would provide clarity about the process up front. In his words, “I was blindsided by the process and would have known more quickly what I was up against if this was the standard practice.”

   Mr. Smith’s lawyer, a well-respected Collaborative family lawyer, attempted to continue negotiations in a “collaborative” manner.

   According to Mr. Smith, “they (his wife and her Collaborative lawyer) were highly aggressive and combative and I was forced to move to a litigation lawyer…my lawyer had continuing difficulties with the other lawyer and we were very close to going to court. I finally signed an unequal agreement to cut my losses.”

   This is not the way we profess to practice, however, there are lawyers who have taken the training that allows them to sell themselves as Collaborative family lawyers. If our clients find themselves in a process with such a lawyer they, like Mr. Smith, will likely have a miserable experience. This tarnishes the reputation of a process we are trying to promote as a better way to resolve family disputes.

   As professionals working in this area we have no control over the lawyer our client’s spouse or former spouse chooses (nor should we) and we have to work with what we are given. If the other lawyer is not prepared to uphold the basic tenets we learn are so important to the process, sometimes the best we can do is explain this to our clients so that they do not walk away thinking that what they experienced was, in fact a Collaborative process.

   For clients seeking out Collaborative family lawyers it is important to ask a potential lawyer how long he or she has practiced in the area, what training they have as a Collaborative practitioner, how many recent cases he or she has done where the parties signed a Collaborative Participation Agreement and what the practice means to him or her.

   Collaborative practitioners are at odds as to how much regulation and oversight this practice area requires. I will not comment on that in this article. Mr. Smith’s case highlights the need for Collaborative lawyers to insist on a standard Participation Agreement that sets out a true Collaborative process.

   By Marian Gage, B.J., LL.B, AccFM
   Berry Gage
   Family Law & Mediation
   165 Cross Avenue, Site. 301
   Oakville, ON
   L6J 0A9
   Tel: 905-338-7941
   Www.bgfamilylaw.ca

2. The Collaborative Process: A One-Stop Shop for Resolving…

   March 14, 2014 4:40 pm Comments Off on The Collaborative Process: A One-Stop Shop for Resolving…

   

   Marie Nickle LL.B LL.M Acc.Fm

   The Collaborative process is my favourite alternate dispute resolution process. Unlike mediation, it is a one-step model.  Mediation requires two steps: one to reach a consensus with the mediator; and two, to receive independent legal advice from lawyers who will also turn the Mediation Report into a legally binding agreement or court order.

   The Collaborative process is a full service model as it includes all necessary professionals, including lawyers. When lawyers have been involved from the outset they understand the thought processes that went into the construction, unlike many mediations where lawyers are not present during the mediation sessions and are handed a Mediation Report cold, without any context as to what is important to the parties and how the agreement captures the optimal results, crafted by the parties themselves.

   Throughout the Collaborative process, the lawyers are ensuring the agreement meets all the necessary legal requirements and that the clients are legally protected, while the other professionals are providing other necessary and valuable services for the parties. The Collaborative process can be thought of as the process that is a one-stop shop for resolving family conflict upon separation.

   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

3. The Collaborative Process: A One-Stop Shop

   June 19, 2013 2:42 pm Leave a Comment

   

   Marie Nickle

   
   By Marie Nickle, LL.B., LL.M, Acc.Fm.

   The Collaborative Process is my favourite dispute resolution process because lawyers are present in the process to not only problem solve for clients but to protect their individual legal interests throughout. Mediation is a good process, but lawyers are often not present so that when the parties attend ultimately to obtain independent legal advice, because the lawyers’ thought processes have not gone into the construction of the Agreement, they are more likely to find problems due to their lack of understanding of what is ultimately important to the client.

   The Collaborative process is a “one stop shop” and accordingly, more effective. If Mediation included the lawyers more often, it would be a better process, in my opinion. I base this on a recent experience where I facilitated a mediation that included the lawyers, who were extremely helpful in narrowing the issues and helping to generate some options. The lawyers then went on to work together to generate a legally binding agreement for the parties. They worked extremely well together and both parties appreciated the “service” provided to them by their lawyers in helping them to resolve.

   Marie B. Nickle

   The 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. Tax Tips for Separating Spouses

   February 20, 2013 1:40 pm Leave a Comment

   By Bronwen Bruch

   

   Financial Professionals on a Collaborative Team provide expertise around the financial ramifications of separation.

   Since we are approaching tax time, I thought I would provide you with some tax tips.

   1.  Spousal support and your pay cheque: If you are employed and you make spousal support payments, you can ask the Canada Revenue Agency (CRA) to authorize the reduction of the amount of income tax that your employer is deducting from your pay.  Instead of waiting until April of next year for the government to send you a refund cheque, you can have a significantly higher monthly net pay now.  Send a completed Form T1213, Request to Reduce Tax Deductions at Source, to you tax services office.

   2.  Shared Custody and claiming your children on your income tax return:  You may have heard that if you are the payor of child support you are not entitled to claim the Amount for Eligible Dependent (or the old Equivalent to Spouse credit).  This is sometimes true.  However, when there is shared custody and both spouses have sources of income, it may not be the case.  This credit could provide you with a refund of over $2,000 each year, so it would be in your best interests to discuss this with a Financial Divorce Specialist.  And if you find out that you are entitled to claim the Amount for Eligible Dependent for one of your children, you may also be able to claim the Child Amount.

   3. Tax implications when separating spouses divide their assets:  Separating spouses go through a process of dividing their assets.  Listing the values of each of their assets is just the first step int he process.  They also need to take into consideration the tax that would need to be paid if the asset were sold.  For instance, if one spouse kept a house worth $400,000, this would not be equivalent to the other spouse keeping the RRSP’s worth $400,000.  Why?  Because when the RRSP’s are withdrawn, tax has to be paid on them, so in essence, they are worth $400,000 less taxes.  Since taxes are not paid when the house is sold, the house is actually worth more than the RRSP’s.  And to complicate things more, there is the question of what tax rate should be used on the RRSP’s?  There are many more questions around dividing investments or pensions and the tax implications. Again, a Financial Divorce Specialist could guide you through this process.

   Separating clients are served very well when they decide to negotiate a separation agreement the “Collaborative” way.  Collaborative Family Lawyers know the law, and are trained to advocate for their client with a collaborative approach.  Family professionals are called upon for their expertise around parenting plans, and Financial professionals are called upon for their expertise around separation finances.  Collaborative Professionals feel that 3 heads are better than one, and the best part is that the couple are not paying 3 times the cost.  It will often be less than the alternative.  Each member of the Collaborative Team will take on the pieces that they have expertise in.  And the ultimate goals is that the couple and the collaborative professionals will create a quality separation agreement that will serve the couple well in their future separate lives.

   Brownwen Bruch, BMath, CMA, FDS

   Certified Management Accountant
   Financial Divorce Specialist
   Financial Family Mediator
   

   THE TAX MANAGEMENT CENTRE
   14-2530 Sixth Line, Oakville, ON L6H 6W5
   T: 905-257-6528  F: 905-257-4221
   bbruch@taxmanagementcentre.com
   www.taxmanagementcrentre.com

    

    

    

    

    

    

    

5. Kevin O’Leary’s Cold Hard Truth on Collaborative Divorces

   January 29, 2013 4:01 pm Leave a Comment

   

   By Meredith Cox

   Kevin O’Leary is everywhere.  On the internet, on the radio, on bookshelves and on television (Dragon’s Den, Shark Tank and The Lang & O’Leary Exchange). In his new book, Cold Hard Truth on Men, Women & Money, Canada’s financial guru shares his opinions on just about everything from the use of Botox and fillers to “How to Spot a Gold Digger”.  He says we should repair our finances and not our faces.  Good to know.  He insists rich people need a prenup because good looking gold diggers are willing to date a person who is a lot older, uglier and wealthier than they are for profit.  No shock there!  We can all silently come up with tons of celebrity and real life examples.  Hmmm…

   The book’s brutally honest dissection of our relationships with each other and money makes a lot of sense.  As I read through the chapters relating to each stage of life, I reflected on where I might have gone wayward. I thought hard about the perils of “Ghost Money” (lattes, lunches and glossy magazines).  I inwardly promised to do better and congratulated myself on the smart decisions I had managed to implement so far.  From now on the balance in my “Money Karma” account will be on a perpetual upswing.

   As a Family Lawyer, I was pleased to learn Mr. O’Leary also has strong views on the merits of Collaborative Divorce.  Unlike the traditional litigation model, collaboratively trained lawyers are not adversaries.  They will work with you and the other lawyer to obtain the best outcome possible for your family.  In his analysis of how to fix or prevent various money mistakes available to us as we go through life, he gives a concise prescription for avoiding the twin legacies of agony and financial bleeding that can go along with divorce court.  I have broken it down into two categories:  no cost self-help and outside help you have to pay for.

   SELF-HELP AND YOUR CHILDREN

   1.  Be compassionate and respectful to your spouse.  Don’t let rage and jealousy cloud your judgment.  You might end up spending more money.

   2.  Do your own research on the law and the process that will work best for you.

   3.  Get and organize all your financial information.  Make your own copies to save money.

   4.  Money you have set aside as RESP’s for the children should remain in place for their benefit.

   5. Put your children’s needs first.

   OUTSIDE HELP

   1.  Don’t try to divide your assets without getting some professional help.  It can be complicated.  Property settlements are permanent.

   2.  Get lots of counselling from a mental health professional.  Stay in counselling.

   3.  Find a collaborative lawyer.  Consider mediation.  Avoid going to court.

   Meredith Cox Sweatman Law Firm 11-1400 Cornwall Road Oakville, ON L6J 7W5

   Profession: Family Law Lawyer  Tel: 905-337-3307 Fax: 905-337-3309  meredith@sweatmanlaw.com  www.sweatmanlaw.com

6. Client Satisfaction and the Collaborative Law Experience

   June 25, 2012 3:12 pm Leave a Comment

   

   Jessie Lamont & Fareen Jamal

   By Fareen L. Jamal and Jessie Lamont

   Lawyers report the practise of family law litigation to be particularly toxic. The Collaborative Family Law Process creates a more desirable working environment for those lawyers inclined toward problem solving, as opposed to vitriolic litigation. But do clients have the same level of satisfaction with the collaborative process as experienced by collaborative lawyers?

   The International Academy of Collaborative Professionals (“IACP”) recently published their findings following extensive research [Linda Wray, “IACP Research Regarding Collaborative Practice (Basic Findings”), The Collaborative Review 12 (2012): 8]. Statistics reflect that the collaborative process is primarily employed by middle to upper middle class, educated divorcing spouses with children, most of whom use some form of the interdisciplinary approach (that is using financial, family or other professionals) in their seperation. Although the vast majority (86%) of these cases settle within approximately eight months through the collaborative process, there is a small percentage of cases that do not settle or are unsatisfied with the process.

   In terms of actual client satisfaction, approximately three-quarters of all collaborative clients polled in the IACP Professional Practice Survey reported being extremely or somewhat satisfied. Even more notably, the satisfaction clients felt for the process slightly outweighed their satisfaction with outcome.

   Clients indicated that they were satisfied with the manner in which their personal respect and respect for their viewpoint was maintained, the manner in which matters were clearly explained, their concerns and confusion addressed, the effectiveness with which their lawyers communicated, and the assistance they received with the development of their parenting plans and options for various issues.

   Collaborative Family Law creates and nurtures a “safe space” for clients who are frequently, at their most vulnerable, addressing a drastic change in their lifestyle, and experiencing intense emotions.

   Separation and divorce present a number of challenges and the success and satisfaction rates of any legal processes are important to consider.

   Seek out personal experiences of collaborative clients and lawyers before selecting the approach you wish to take. Self-examine what you truly seek from the process, and determine what your goals are. Collaborative Family Law may create an increased chance for desirable outcomes and, throughout the entire process, the greatest degree of client satisfaction.

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

   Tel:  416-203-4538                                     Tel: 416-203-8591
   Fax:  416-203-8592                                    Fax: 416-203-8592
   fjamal@balesbeall.com                                jlamont@balesbeall.com

7. Collaborative Family Law: A Safe Place to Have Difficult Conversations

   May 8, 2012 3:17 pm Leave a Comment

   

    

    

    

    

   by Fareen Jamal

   I read an interesting account of one woman’s experience with her divorce, (in Hann McDonough and Christina Bartha, Putting Children First, University of Toronto Press, 1999) and reproduce it here:

   “The Blaming Hamster”

   During our marriage we were like two hamsters on a wheel. We ran furiously, going nowhere, hating our lives and unable to change.

   I couldn’t change because he wouldn’t. So it was his fault. I was trying and he wasn’t. It could not be my fault, he was to blame.
   
   Eventually, I couldn’t stand it. I jumped off the wheel, left the cage, and took my sons with me. There on the outside I discovered another wheel. Beside it was one for him. We took up residence on our respective wheels. The boys had to dance on the top of the wheels while we continued our war with each other. Although I never returned to the marriage, I lived out a slightly altered version of it. That too was his fault. I could not get on with my life because of him. He would do something, I would latch onto it, using his actions to justify my own.

   It took years of this craziness before I saw what it was doing to us. For years I watched my sons bounce back and forth, trying to please us, and paying such a price. One day, way too late, I admitted that I, as well as their father, was damaging them. I realized I could only change myself. I could not change him. Then, to my horror, I noticed that our sons had spun out of control. While we were fighting, they had slowly become delinquent, and we had not even noticed.

   The hamster caught on the treadmill captures the experience of several parents caught in these conflicts. Both parents feel that they have no choice, that they are forced by the other parent’s behaviour to fight.

   Some parents fight to ward off the pain of grieving. They would rather be mad than sad, and the fighting distracts them from pain. Postponing the grieving however, may increase your problems.

   The only way out is to invest in what you can control: yourself and your behaviour. Focus on what you can change. The only one you can control is yourself.

   The legal system escalates your conflict. The adversarial nature of the system polarizes problems. The win/lose, right/wrong approach may work in criminal issues, but as I blogged on December 19, 2011, this is not appropriate for family matters.

   Stay in charge of the systems you consult, and whose services you employ. They are there to serve you, not to rule you. Always inquire about their philosophy and orientation.

   Collaborative Family Law is a voluntary, safe, confidential process to resolve your matrimonial disputes, with a written agreement not to litigate. Collaborative Family lawyers focus on interests not positions, and may use neutral and impartial professionals, such as a financial advisor and/or a child specialist, to assist. Conflict, tension and emotion are not ignored by Collaborative Family lawyers. It is a safe place to have difficult conversations.

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

   Profession: Family Law Lawyer Tel: 416-203-4538 Fax: 416-203-8592 or 416-203-4539 fjamal@balesbeall.com www.balesbeall.com

8. The Collaborative Process: Or Who Are You And What Have You Done With My Lawyer?

   April 13, 2012 4:57 pm Leave a Comment

   By Marie Nickle

   This process is a vehicle for lawyers to actually provide a meaningful service for clients. And why wouldn’t we? We are so well positioned to do so. People come to us at possibly the worst times of their lives. Their worlds are falling apart. They are stressed, sad, angry and above all fearful of the changes they are going through. We, as lawyers, are often the first they turn to for professional help. They are looking to us to guide them toward a resolution to their conflict that includes peace of mind as well as a legal resolution. After all, who doesn’t want peace of mind? Of course, we can’t advertise it and there are obviously no guarantees, but if even a small degree of peace of mind is attained in the process, we’ve accomplished something for our client. How do we do it? One way is being aware that, when children are involved, maintaining relationships is important for the client. Often the client is too immersed in their emotions to think long term. As such, it is difficult for them to form effective negotiation strategies. Often what is in the best interest of the client is tied directly to what is in the best interests of the entire family. We can help a client form good negotiation strategies by focusing on this principle. It will help keep clients centered in terms of what is really important. A true collaborative client will always agree that a good legal result has to include quality of life. After all, what good is it to bargain away an important relationship in exchange for a legal entitlement? If the relationship isn’t important then it doesn’t matter. But most of the time we are dealing with relationships that are important to the client in the area of family law. To provide truly valuable service we need to include advice that includes not only the legal advice, but how any given legal result will impact upon quality of life for the client going forward. This is what your client will thank you for. Not that I expect it, but I realized that I rarely even received thanks from a client, that is not until I started to practice in the Collaborative Process. Now it happens all the time.

   Marie Nickle is a lawyer and trainer of the Collaborative Process.

   Marie Nickle, LL.B LL.M AccFM
   Lawyer, Mediator, Arbitrator, Trainer
   Former panel lawyer for the Office of the Children’s Lawyer

   204-1715 Lakeshore Road West
   Mississauga, Ontario L5J 1J4
   T: 905-823-1232
   Email: mariebnickle@bellnet.ca

9. Finances go beyond Valuation Date

   April 10, 2012 2:02 pm Leave a Comment

   By Bronwen Bruch

   It seems so simple! Divide the property in half, use the guidelines to calculate spousal support, and use the tables to calculate the child support. How difficult could that be?

   Unfortunately it is like when you are told that all you have to do to lose weight is to “diet and exercise.” Again, the concept seems simple enough. But as many of us know, you quickly find out there are obstacles that get in the way of your success when you go at it alone.

   The same goes for separating couples and their finances. The good news is that they don’t have to go at it alone. In the last decade, a different kind of financial professional has come on to the divorce scene. They are Financial Divorce Specialists (FDS) or Certified Divorce Financial Analysts (CDFA). Applicants for either accreditation must already have a recognized professional designation in accounting or financial planning. Financial professionals that have an affinity to conflict resolution may also choose to be trained as mediators. And financial professionals that would like to be part of a Collaborative Law Practice Group are required to take the same courses on collaborative procedures that are required of the collaborative lawyers. However, what all of these financial professionals have in common is that they are all able to provide clients with a thorough evaluation of the financial ramifications of divorce settlement options. This is of benefit to the process because the client is being asked to make irrevocable financial decisions during an emotional roller coaster ride.

   That is why more and more lawyers, call on these financial professionals to assist their clients in arriving at a settlement. The lawyer may not feel comfortable giving out some types of financial advice. And it isn’t always cost effective; or they aren’t always able to take the time to analyze the future financial impact of alternate proposed settlements, or educate a client that has less financial knowledge.

   These financial professionals:

   1) Can work with the spouse that is less knowledgeable financially, so that they come into the negotiations on equal footing
   2) Organize financial data that comes in from both spouses and prepare various financial documents, and
   3) Prepare financial scenarios around future cash flows and net worth

   Financial issues in a divorce can be a challenge. This is exaggerated by the emotional turmoil the couple is experiencing. They say that for married couples, financial stress will magnify any bumps in the road ten-fold. So for separated couples, it follows that the financial stress, will be that much worse.

   When trying to put together the “dreaded” financial statements or budgets for your lawyer or looking at your spouse’s financials, it can trigger feelings of anger, mistrust, fear and inadequacy. This explains why a client may freeze in the middle of this process. The financials then go on the shelf until the client is ready to face those numbers or “emotional triggers” again.

   Individuals, couples, lawyers and family professionals that are interested in “collaboration” enlist these financial professionals. Their approach to a legal settlement includes the usual analysis of the “Valuation Date Needs.” However, there is an additional component which is the analyses of future financial needs. We know that financial stress is compounded by fears about your financial future. In a separation, there is the added resentment that the other spouse will be unduly better off. Adding this future component to the analysis can reduce these fears and resentments, which will help bring the settlement to resolution sooner, which in turn will save time and money for all involved.

   Bronwen Bruch, BMath, CMA, FDS
   Certified Management Accountant
   Financial Divorce Specialist
   Family Mediator

   The Tax Management Centre
   14-2530 Sixth Line, Oakville, ON L6H 6W5
   T: 905-257-6528 F: 905-257-4221

   bbruch@taxmanagementcentre.com
   www.taxmanagementcentre.com

10. ANGER!

    March 16, 2012 2:39 pm Leave a Comment

    By Beverley Martel

    The Collaborative Process is based on full disclosure and mutual respect. Parties and their lawyers sign a Participation Agreement acknowledging that written and oral communication between the parties will be respectful and constructive. At the first meeting the lawyers will discuss “rules of conduct” such as politeness, no interrupting, no name calling and others.

    A collaborative four way meeting, attended by the parties and their lawyers, is seen as a “safe” place to negotiate a Separation Agreement. But what about the angry souse? Is there a place for anger at the collaborative table? How do parties negotiate in a civil manner when one or both of the parties is openly hostile?

    Many couples who are “separated” continue to live under the same roof, usually for financial reasons. Until the issues of support and division of property are resolved it may be impossible for one or both to purchase (or rent) separate accommodation. The laws of Canada recognize that a married couple may be living under the same roof and still meet the criteria of living separate and apart that allows them to seek relief under the Divorce Act or applicable provincial legislation (in Ontario, the Family Law Act).

    Obviously, where there has been a breach of trust, especially in cases of infidelity, living under the same roof is stressful. Tempers flare, in the home and at the collaborative table.

    Counsel can help the parties handle their emotions and can “model” civil, respectful communication. Coaches can be employed to assist either or both parties to deal with hostility. A third party neutral or facilitator can help everyone move past the anger that may be impeding communication and thwarting potential settlement.

    Regardless of their social or financial status people in the midst of a relationship are emotional, sometimes overtly hostile toward one another. Mel Gibson made headlines when his telephone calls to his estranged girlfriend were made public. Going to court does little to calm the waters. In fact, the pleadings served on the other party and filed with the court may inflame an already volatile “relationship.” Angry litigants sit on opposite sides of the courtroom with their respective lawyers between them. There is little if no opportunity for facilitated conversation between these litigants. And if they cannot communicate directly there is little hope of dispersing the anger and moving towards resolution.

    The lawyers in a collaborative file will strive to overcome the anger, not feed it, and may call on other professionals, such as social workers, to assist. This “Team Approach” is one of the benefits of the collaborative process. Obviously if there are real threats to the emotional or physical safety of one of the parties the collaborative model is not appropriate. If evidence of violence or threats of violence emerge during the process it may be necessary to terminate. However, where the hurt and resentment of one or both parties boils over into anger, the process and the players (including lawyers, mediators, coaches or mental health professionals) has much to offer.

    Beverley A. Martel, B.A., LL.B., LL.M.(in ADR)
    Barrister & Solicitor, Mediator, Collaborative Practitioner
    Past President, current Director Peel Law Association
    Director Ontario Deputy Judges Association

    Weir Nakon
    1290 Central Parkway West, Suite 710,
    Mississauga, ON L5C 4R3
    Phone (905)279-7930 (223) Email: bmartel@weirnakon.com

11. Bringing on the Collaborative during a Litigious Divorce!

    March 5, 2012 3:22 pm Leave a Comment

    By Kathryn Jankowski

    Some judges ask collaboratively trained professionals to attempt to bring the ‘essence’ of the collaborative divorce to their litigious divorce clients in an effort to solve differences in a more peaceful manner and keep divorce proceedings out of court. One might think that these very same judges are attempting to put themselves out of business, however, there are enough divorce cases to keep them busy. A sad and sobering thought!

    It was because of the judges ‘call to action’ that prompted me to have a collaborative slant on a discussion I recently had with a client who was going through the worst of a high conflict, litigious case. Sometimes divorcees can get caught up in fighting for things that maybe they shouldn’t. Let’s look at this example, below.

    Husband, let’s call him Joe, will do anything to upset wife, let’s call her Jane. Joe knows Jane so well (they were married, right?) that he knows exactly what triggers her and he uses it. Jane has a pension plan from her place of employment and Joe has a right to be a joint beneficiary of that pension until he signs off on his interest in it. He is dangling this over Jane’s head in his effort to constantly thwart her in every effort to move forward.

    In my conversation with Jane I asked her why the value of that pension was so important to her. She told me that she wanted to help support her children if anything were to happen to her (she has two children, eight and ten). As her pension is a defined contribution pension she is very concerned that if something happened to her that her children would have those funds to help meet their needs, especially since they are still dependent. It seemed to me that Joe was using his spousal rights to the pension to empower himself in the divorce proceedings. By neither agreeing to sign the right to give up his interest or to negotiate a separation agreement Joe has Jane right where he wants her. (I won’t get into the fact that Joe does have a valid interest in the pension asset which needs to be negotiated.)

    Stepping back from the situation I reminded Jane that if her children did become the beneficiaries of her pension then the assets will become deregistered, at death, and included as income in her final tax return. Depending on what else was going on in the form of income, in that year, her asset will be diminished by her marginal tax rate. So then, if her pension was worth $100,000 her income would be $100,000 in her final tax filing (along with any additional taxable income). The kids would get the $100,000 and Jane’s estate (the residue that is also left to the kids) would pay the tax. So, in essence, the kids would be left with $56,590 (again, simple math and not taking anything else into consideration and using the highest marginal tax rate in Ontario). I asked Jane if she could afford to purchase a life insurance policy for $57,000, with her kids as beneficiaries so that if something did happen to her that she would protect the value of her pension to help meet the needs of her children? I also asked Jane if she was insurable. The insurance proceeds are non-taxable (as they were purchased with after-tax cash). I mean, if it was truly her goal to ensure her kids were OK this solution seemed like a win-win. Regardless of the asset in question, I suggested Jane do some number crunching to calculate the needs of her children going forward, if she wasn’t around, rather than just assuming the pension amount would suffice. Guardians would have to be paid and then, of course, there is the post-secondary education needs to consider as well. By purchasing an insurance policy she is taking away the empowerment of a high conflict ex-spouse. It no longer mattered what Joe did or didn’t do with regard to the pension issue. Jane’s concerns were addressed by another means and Joe no longer had pension power!

    She loved the idea.

    Sometimes it helps to not get hung up on particulars of each asset but rather what that asset truly means to you. In a litigious setting the power struggle seemed to be more of the issue than the value of the pension. Taking a collaborative approach and seeing another potential solution allowed Jane to move on with less resentment and still have her needs fulfilled. Hopefully, this post will reach someone who is contemplating divorce to consider the collaborative approach rather than getting hung up on the throngs of battle in a litigious setting by realizing needs can be met and voices can be heard in a less harmful manner.

    Kathryn Jankowski, B.A., CFP, FDS, FCSI
    Vice President, Financial Divorce Specialist
    T.E. Wealth
    kjankowski@tewealth.com
    416-640-8591

12. Lessons for Collaborative Clients and Practitioners

    February 15, 2012 9:55 am Leave a Comment

    
    by Diane Daly
    In many years of collaborative practice, I’ve had only one really, over the top, bad experience with another collaborative lawyer. A lot of files have been challenging for sure, but only this one stands out as absolutely over the top bad. And the first thing you think as a person who has separated is, “why is she telling me this bad news story?” “Why would I want to consider Collaborative Practice as a means of negotiating a settlement with my spouse?” Because the story illustrates two points:

    First, it was one bad file in about nine years of Collaborative Practice – that’s pretty good, especially when you consider the number of bad files family law lawyers have in litigation – I can’t begin to count them in 22 years of practice, there are so many!

    Second, it illustrates the importance of choosing your collaborative practitioners wisely.

    Here is the “Reader’s Digest” version of my story. I and another “collaborative” lawyer (I’ll call her Jane) set up and attended two or three four-way meetings with our respective clients. We exchanged most financial disclosure and were just getting down to the details of settlement, when Jane tells me (at a Christmas party, no less) that her client has asked mine to meet at Jane’s office and sign a draft separation agreement that Jane had prepared, outside of the collaborative process, based on her client’s instructions.

    The agreement was a horrible deal for my client, who was being pressured by spouse and children, also outside of the collaborative process. I pointed this out to Jane who knew the situation. Well trained collaborative practitioners understand that people don’t always behave well. It’s human nature. People are being asked to put their best foot forward at one of the most difficult and stressful times in their lives. It’s just not realistic to expect perfect behaviour all the time. As collaborative practitioners, we have to deal with that in a non-judgmental way, within the process, and still advocate on our client’s behalf. By virtue of the Participation Agreement that clients sign, and collaborative practitioners confirm, we are bound to withdraw from the process if a client’s behaviour lacks honesty and integrity. In this situation, I pointed out to Jane how inappropriate this was from a collaborative process perspective, not to mention the fact that it was a serious breach of professional conduct to have a vulnerable person sign an agreement at her office, without the benefit of independent legal advice. Well, it happened anyway. I found out that my client had gone to the other lawyer’s office and signed the separation agreement. I called Jane to tell her what I thought of the tactic and her response was that her client wanted her to do it, so she had to.

    It was a terrible outcome – not only because it was so unfair to my client, but more importantly, because my client wasn’t happy with the result. It was just a case of not being able to deal with the stress, and being bombarded with pressure, outside of the collaborative process.

    Jane’s behaviour in that process was inexcusable. But the really good news is that Jane is truly the exception. The vast majority of lawyers, mental health professionals and financial professionals who practice using the collaborative model have a genuine desire to assist their clients in a dignified, respectful, non-adversarial way, and with the very utmost of integrity. Our credo is “Resolving Disputes Respectfully” and we live by that.

    The anecdote begs the question, “how do I choose a collaborative practitioner, be it a lawyer, mental health professional or financial professional?” So here are a few pointers:

    1. Ask about their training. Most Collaborative Practice groups require their members to have a minimum of five days of basic training. But ongoing, continuing education is absolutely critical.

    2. Ask how long they’ve been practicing collaboratively? How many collaborative files have they done in that period? If they’re just starting out, they may only have their basic training and done only a couple of files. And that’s okay. Everyone has to start somewhere and the beauty of the collaborative model is that dedicated collaborative practitioners exchange information. We meet to talk about our cases (on a no name’s basis, of course). We mentor each other. We do not take advantage of the other client’s or lawyer’s mistakes. We strive for agreements that emphasize a “win-win” approach. If your collaborative practitioner has been around for five years and never taken anything but the basic training, and has had only two collaborative files, you might want to have a frank discussion with them regarding their commitment to the process.

    3. Ask whether your practitioner is a member of a local collaborative practice group. Do they attend group meetings? Do they attend any of the collaborative conferences? Do they demonstrate commitment to the process by working to develop and improve the process in their community and with other collaborative professionals?

    4. If it’s a collaborative lawyer you’re looking for, ask them how much litigation they do? Many collaborative lawyers do some litigation, of course, but if most of their files are in court, you should at least discuss with them why and get some feel for their commitment to the collaborative process.

    5. Most importantly, trust your instincts. Whether it’s a collaborative practitioner or a litigator, you need someone who is on the same page philosophically as you are. Your collaborative practitioners are part of your team, and you need to be comfortable dealing with them.

    Diane F. Daly
    Collaborative Lawyer, Mediator & Arbitrator