Brahm D. Siegel2013-05-22T11:28:39-04:00Brahm D. Siegelhttp://www.huffingtonpost.ca/author/index.php?author=brahm-d-siegelCopyright 2008, HuffingtonPost.com, Inc.HuffingtonPost Blogger Feed for Brahm D. SiegelGood old fashioned elbow grease.Ask a Divorce Lawyer: 2011 Case of The Year: Kerr v. Baranowtag:www.huffingtonpost.com,2012:/theblog//3.12877352012-02-20T00:42:35-05:002012-04-20T05:12:01-04:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.
In Ontario, we don't divide property between married persons literally in half or "in specie." Instead, we have a law that states whichever spouse's net worth has increased more than the other's during the marriage must pay an amount of money to that spouse to make life equal. That payment is, in Ontario, called an "equalization payment." As a result, legal ownership rarely makes a difference since even if one spouse owns all of the parties' assets, s/he will wind up making a large equalization payment which has the effect of, well, equalizing the parties' net worth.
But what about folks who are not legally married? What if both of them contribute to the wealth but everything is in only one person's name? Since unmarried couples have no right to sue for property or "equalization" in Ontario (and many other provinces except Nova Scotia and Saskatchewan), is there any recourse for the non-titled party?
The short answer is "yes," and one of the most important cases in 2011, Kerr v. Baranow, clarifies exactly the correct approach in such matters.
Heard by the Supreme Court of Canada in April 2010, released almost a year later in February 2011 and penned on behalf of the Court by Mr. Justice Cromwell, the case is an extremely eloquent and lucid treatise on the law of "unjust enrichment."
At the heart of unjust enrichment is the notion of restoring a benefit that justice does not allow a person to retain over another. Under longstanding Canadian law, a plaintiff has a claim for unjust enrichment where s/he can establish these three things:
an enrichment or benefit to the defendant;
a corresponding deprivation by the plaintiff; and
the absence of a juristic reason for the enrichment.
Under the first two criteria, the plaintiff must show that she gave something to the defendant which he received and retained. The benefit need not be retained permanently but the defendant must have benefited or been enriched as a result of it. The benefit may be positive or negative (meaning something that but for the benefit would have resulted in the defendant incurring an expense) and must be capable of compensation by money or property.
Under the third criteria, the plaintiff must show there is no reason in law or justice why the defendant should retain the benefit. For example, a valid contract between the parties (like a cohabitation agreement or marriage contract) allowing the defendant to retain the benefit would, on its face, appear to constitute a juristic reason.
Before Kerr v. Baranow, successful plaintiffs in unjust enrichment cases were compensated via a "fee for service" method called "quantum meruit." This involved a highly unsatisfactory and unscientific method of trying to calculate the value of the service or services provided by the plaintiff which benefited the defendant and led to the unjust enrichment and contrasting it with the impact the value of said contributions on the current value of the property in question. In Kerr v. Baranow, the Court does away with this notion and instead replaces it with a different approach, one called the "joint family venture."
The concept is simple enough. Where the contributions of both parties over time result in an accumulation of wealth, the unjust enrichment occurs following the breakdown of the relationship when one party retains a disproportionate share of the assets which are the product of their joint efforts. In contrast to the traditional analysis, the required link between the contributions of the plaintiff and a specific property may not exist, but as long as there is a clear link between the joint efforts of the parties and the accumulation of wealth, a claim for unjust enrichment may be made out. Consequently, regardless of who actually owns the property in question, when the parties have engaged in creating wealth in a common enterprise, the wealth created during the period of cohabitation will be treated by the Court as the fruit of their domestic financial relationship and not solely the property of the titled spouse.
The Court's elimination of the need to show a contribution to a specific property represents a broadening of the parameters of the claim and has led many lawyers and commentators (yours truly included) to presume that we will now see more claims of unjust enrichment in the future.
Of course, proving a joint family venture may not be as simple as some think. Whether or not the proper facts can be mustered to prove such a claim will be a challenge for some. Whether or not the couple was working together for the same economic goals, whether their economic lives were integrated and whether they had the same priorities are all questions of fact a trial court will have to satisfy itself before a finding of JFV can be made. In addition, the Court was careful to note that mere cohabitation does not, under the law of unjust enrichment, entitle a party to a share of the other's property or to any remedy in the absence of proof of contribution. In addition, simply because a joint family venture is established does not mean the non-titled spouse will receive 50 per cent of a specific property or 50 per cent of all the total of the parties' assets. The Court always retains the ability to select a certain percentage.
It will be interesting in the years ahead to see how lower courts interpret the concept of "joint family venture". The one thing, however, that all family lawyers seem to agree on is that Kerr v. Baranow was the most significant family law case decided by the Supreme Court in 2011 and that it is a well-written decision that must be carefully read anytime a claim for unjust enrichment is asserted. I commend it to you all.
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.]]>Ask a Divorce Lawyer: Mediation: Evaluate or Facilitate?tag:www.huffingtonpost.com,2012:/theblog//3.12687792012-02-13T00:09:40-05:002012-04-13T05:12:01-04:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.
Most folks know about mediation. Mediation is a method of dispute resolution where the parties agree on and appoint an independent and qualified third person to help identify their interests, try to find common ground and create a bridge leading to settlement. In divorce law, mediators can be social workers, psychologists, practising lawyers and even former judges. Even in the court system, however, judges sitting in "case management" use mediation-style techniques to bring litigation to a close.
Many people think mediation does not involve lawyers. False. Mediation can simply occur between spouses and mediator but often this is not enough. In certain cases, especially high-conflict cases or cases involving significant sums of money, property or complicated legal issues, both parties have counsel. While mediation without lawyers can be cheaper than lawyer-assisted mediation, I have experienced many disappointed clients who, having thought they negotiated a good deal, tried to undo it before it was signed but went to see a lawyer for advice after the mediation. This is why it is a good idea -- if you can afford it -- to have a lawyer at the mediation or at least in the background to give you advice as it progresses.
Lawyers representing clients in mediation do not generally act the same way they do in litigation. They do not take over the process. Rather, they tend to take a backseat, at least in the initial stages, as the mediator tries to connect directly with the clients. Of course, over the course of the mediation the client will often consult with the lawyer about various options. For the lawyer therefore, a delicate balancing act goes on between, on one hand, giving the mediator the freedom to explore interests and options with the parties, and on the other, being ready, willing and able to advise the client when any proposal or recommendation is put on the table.
A common misconception is that mediators simply work hard in an effort to bridge the two parties' positions and do not take "sides". That is not, at least in my experience generally, the case. At the heart of this misunderstanding is a failure to appreciate the difference between "facilitative" and "evaluative" mediation.
Facilitative mediation is where the mediator uses his skills to try to find a solution to the problem at hand without giving his opinion. In this kind of mediation the clients should not know what the mediator thinks about the case, how it would likely be treated by the court or whether or not a person's position on any issue is strong or weak. Almost all mediation starts -- and many end -- this way, meaning that if no settlement is reached neither party should know what was in the mediator's head in terms of who was more reasonable and who was more responsible for the deal falling through.
In contrast, in evaluative mediation the mediator does all the same work as a facilitative mediator but, at some point -- usually when there is a major impasse -- he will venture some guidance or an opinion as to the likelihood of success on a particular point if the case proceeds to court or the merits of a certain proposal.
This is dangerous territory for the mediator and the parties. The mediator runs the risk of being seen as impartial and one party has much less incentive to make concessions if the mediator's opinion favours them, which may make it harder to reach a settlement. On the other hand, in many cases, the mediator will have gauged the parties correctly and after providing the opinion, one person's position changes which paves the way for a settlement. For this reason, the mediator needs to tread delicately before embarking on this kind of path. Speaking not only in general but in my own experience as mediator, usually evaluative mediation happens only when a person has taken a position that is quite extreme, has very little chance of success in court or taken it only to make it seem they're being reasonable later on when they give up on it, even though they haven't given up really anything.
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.
]]>Ask a Divorce Lawyer: Is 2-2-3 the New Parenting Plan of the Year?tag:www.huffingtonpost.com,2012:/theblog//3.12423302012-01-30T15:48:01-05:002012-03-31T05:12:01-04:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.
Back in 1995 when I started practising family law, the standard parenting schedule was pretty straightforward: The children resided primarily with one parent (almost always the mother) and, unless the other parent (almost always the father) was an addict, abuser or posed some other kind of risk to the children, he saw them every second weekend and one night a week. There were some variations on this theme of course, but they were rather minor. Weekends typically ran from Friday night to Sunday night but could go from Saturday mornings to Sunday afternoons, or Friday from school to Sunday mornings. The one night a week was typically Wednesday and included an overnight, but could just run from after school to dinner with a return home by 7:30 p.m. Basically, this was the schedule you could say I was "raised" on by other lawyers and judges I came into contact with back then.
Well, that was 17 years ago now, and things have changed. How? First, in recent years I have witnessed a strong trend towards equal-time schedules, the most popular of which is "2-2-3": two consecutive and fixed days with mother (Monday/Tuesday), two with father (Wednesday/Thursday) and then three days through the weekend with one parent (Friday after school to Monday morning) alternating every weekend. I'm not sure exactly when it started, but would guess that about a year and a half or two years ago it reached a tipping point of sorts where now almost every case I have someone is either requesting this schedule -- or opposing it.
Proponents of 2-2-3 like the fact it allows for less transitions than an alternate weekend schedule with two overnights per week (Tuesday/Thursday for one parent, Monday/Wednesday for the other). They cite that since the parents keep the same weekdays but alternate weekends, each gets the children for a five-day stretch every two weeks, which allows for short trips or holidays and an extended period of time where the children can enjoy some stable time with that parent without having to be concerned about upcoming transitions. Finally, they point to the fact that this schedule is consistent with the principle of the children having "maximum contact" with each parent, which is a principle enshrined in section 16(10) of the Divorce Act.
Opponents believe that children should typically reside primarily with one parent throughout the week with no overnights. They maintain that equal overnight access throughout the week disrupts routine, which is especially heightened when the parents have different expectations regarding bedtime and homework. They don't mind the five-day stretch when the children are with them, but believe it is contrary to their best interests when the other parent has them for five days at a time because they are the one to whom the children are most attached. They point to the fact that equal time should not be the goal of every parenting schedule; rather, a schedule which best reflects the children's "best interests" should be sought. Finally, they point to the fact that 2-2-3 involves a lot of transition, which confuses children and makes them constantly "on the move."
In my experience, the proliferation and popularity of 2-2-3 in recent years is due to a few factors: The increasing number of women in high-stress, high-paced jobs means we are increasingly seeing cases where both parents are out of the home most of the time; the increasing number of men willing to make sacrifices at work in order to bring their children into school in the morning or pick them up early in the afternoon means more cases where equal time is feasible; the strong impact men's rights advocacy groups have made around the world, and research which shows that provided parents are able to follow the schedule with minimal conflict, overnight visits for children over a certain age -- generally three-years-old -- pose no discernible risk to their later development.
Based on my consultations with potential clients, negotiations with opposing counsel and litigation in the courtroom, in general the biggest advocates of 2-2-3 are fathers and custody/access assessors (typically social workers and psychologists) while again, in general its most vociferous opponents are mothers and traditional judges who were raised on alternate-weekend-one-night-a-week schedules long before me. That is to say, I sometimes meet mothers who are quite agreeable with the concept of equal-time sharing, just as much as I meet fathers who are agreeable with the principle of the mother having primary care. Just not anywhere near as often as I am of fathers seeking equal-time or mothers seeking primary care.
I want to make clear that I am not an advocate of 2-2-3 -- or any other parenting schedule per se; whatever plan works best for my clients is what I'm interested in. I am simply commenting on what I see as the latest popular trend in schedules in family law and how it has emerged. In this respect, what I find interesting is that 2-2-3 has grown from the "ground up" over the years instead of being imposed by judges on couples. By this I mean that in general judges are much more cautious about ordering 2-2-3 than custody/access assessors and fathers are about recommending it. Sometimes there are good reasons for this, such as when there there is a lot of conflict between parents, or the children are very young or have special needs. However, what I predict we'll see in 2012 is more cases where average parents with an average modicum of conflict will find a more receptive ear from the bench about whether 2-2-3 is in their children's best interests.
Whether I'm right or not... I'll let you know next year.
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com. ]]>Ask a Divorce Lawyer: Am I on the Hook for Alimony?tag:www.huffingtonpost.com,2012:/theblog//3.12220342012-01-23T14:21:22-05:002012-03-24T05:12:01-04:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/
"My question concerns alimony. I have been married 21 years and even though my wife and I aren't planning to divorce any time soon (hopefully), I would be lying if I said the last few years have been smooth. I'm not concerned about child support as I love my kids and they deserve everything they need. My wife works, but only makes about one-half of my salary and she's already told me she'd go after everything she's entitled to, i.e. pension, property, alimony. I guess what I really want to know is, after everything is divided down the middle, would I still be on the hook to pay her alimony for the length of our marriage, 21 years?"
Dave's question is really about entitlement and duration of spousal support. That's what we call it in Canada. In the United States they call it "alimony."
Let's start with the first part, entitlement.
There are usually two ways a support recipient can establish entitlement: need and compensation. Need is simple. If Dave's wife (let's call her Mary) is simply not able to pay her bills and afford a reasonable lifestyle with her own income, she will have established need. Of course, while these concepts seem simple in general, when you get into specifics things can get complicated and quite nasty. Sometimes a recipient's income is so low or her ability to support herself so weak that it will be easy to conclude need. But in far trickier cases, the payor feels that the recipient needs a lot less than the recipient believes she does, especially once child support has been included. Also, sometimes we see battles over what the payor believes is the recipient's failure to work sufficiently to pay her own way. Generally speaking however, absent cases where the recipient can clearly provide for herself, need will be established.
Just because Mary earns half of what Dave earns does not mean she is entitled. If she earned $200,000 and he $400,000 then I could make a strong case she is not entitled. That's where compensation comes in.
Compensatory support is support designed to, well, compensate a spouse for making financial sacrifices during the marriage which benefited the children and/or other spouse. If Mary was, for example, a brain surgeon who took 10 years off from her career to stay home and raise the children, it would be pretty easy for her to establish that she would be earning far more than $200,000 but for said decision. This would entitle her to spousal support even though she may not need it.
Let's assume Dave earns $100,000 and Mary earns $50,000. Let's also assume that upon a physical separation there are two children and they live primarily with Mary. We need this information because the amount of spousal support Dave will pay is a function, to a great extent, of the child support he must pay first. Only after child support has been calculated can we realistically assess how much spousal support will be payable.
Based on the Child Support Guidelines, which are federally enacted mandatory levels of child support payments based on the gross income of the payor and the number of children involved, Dave will pay Mary basic child support in the sum of $1,416 per month. Mary will not pay tax on this sum nor will Dave be able to deduct it from his income. Also, assuming this information, Mary will, in my view, easily establish entitlement to spousal support based on need. She may also have a compensatory element to her claim but we do not know this based on the information provided.
In order to see how much Dave should pay in spousal support we then turn to something called the Spousal Support Advisory Guidelines. Introduced across Canada in 2005, they are an extremely useful and widely used tool by lawyers and the judges to establish consistent quantum and duration for spousal support claims where entitlement has been accepted or proven. In a future article I will write about the SSAG and how they work in further detail. For now, let's see how they impact on Dave and Mary.
The starting point is that after inputting Dave and Mary's ages, incomes and once again, assuming the children live primarily with Mary, the SSAG will generate three monthly numbers: low, midpoint and upper figures. With Dave and Mary, the numbers are $76, $433, and $794. These numbers are the same across Canada and are based on the assumption that the payments are tax-deductible to Dave and included as income for Mary on her tax return. The closer Dave and Mary live to a big city, the closer to the upper level the amount will be. Further, caselaw in recent years has established that absent exceptional circumstances, a figure within the SSAG will likely be considered reasonable upon first review by a court.
Finally, duration. Again, the SSAG are instructive. Largely but not entirely a function of the length of the marriage, the amount of time a spouse will pay spousal support can range anywhere from half the length of the marriage to "indefinite," which means until some other event triggers a review, termination or variation.
In Dave and Mary's case, based on their 21 years together, the recommended duration is indefinite. This means there is no fixed range for when support should end, which is often very unsatisfying for payor clients. Consequently, if Dave wants a fixed end-date for spousal support he will have to negotiate it with Mary or start a court case and ask a judge at a trial to fix one. Whether a judge will or won't is debatable and depend on various factors, such as when Dave retires or if and when it's reasonable to expect Mary will earn significantly more money in the future.
Dave and Mary, however, can agree to a fixed-length term by increasing the payments up front for a number of years or reducing them for a longer period (called "restructuring"). They can also agree, usually with the assistance of an accountant or valuator, on a one-time lump-sum payment which is not taxable to Mary or tax-deductible to Dave. Once paid and provided Dave's lawyers have prepared appropriate release language in their settlement documentation, Mary will not be entitled to any further spousal support.
So, Dave, in sum, if you separate and live in or near a cosmopolitan center I predict you will have to pay child support of $1,416 per month and spousal support, in an amount between $400 and $800 per month per month, for an indefinite period of time, subject to variation in the event of a material change in circumstances.
]]>Ask a Divorce Lawyer: How Is Property Divided?tag:www.huffingtonpost.com,2012:/theblog//3.11867132012-01-16T01:57:00-05:002012-03-16T05:12:02-04:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/(Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He is here to answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com)
Q: How is property divided after a marriage breakdown?
In Ontario and most other provinces, each party's assets and debts are valued as of two specific dates. The first is the date of marriage. The second is the "valuation date," which is usually the date of separation. We then calculate how much each spouse's net worth has increased from marriage to valuation date. The spouse whose net worth has increased more than the other must pay a sum of money to "equalize" their property. This payment is called an "equalization payment."
Q: When you refer to assets, you mean investments?
Assets include all property, including investments, real estate, accounts and pensions.
Q: So how come I always hear people talk about "getting half" from their spouse?
"Getting half" is not the way it works. Instead, a one-time payment is made in order to equalize the difference between the spouses' increases in their net worth from marriage to separation. That is very different from halving everything. Remember, we do not divide up each asset. There is only one payment made. The assets and debts are totaled up at separation for each side at separation and at marriage and a calculation is performed to determine the equalization payment.
Q: I'm still a bit confused. Can you give me a quick example?
Let's say at marriage my client's worth $1,000,000. At separation, two years later, he's worth $1,100,000. His increase in his net worth is $100,000. Let's say my client's spouse is worth $50,000 at marriage and $60,000 at separation. Her increase is $10,000. The difference between the parties' net increases is $90,000 ($100,000 - $10,000). When that sum is divided by two, we get $45,000. Once that figure is deducted from my client's increase and added to his spouse's we get $55,000. They are now equalized. The $45,000 payment is the equalization payment.
Q: I notice you say "in Ontario". Are things different in other provinces?
Yes. Property is, by definition in our constitution, something which falls under provincial jurisdiction, so there are some differences across provinces. A person should never rely on legal advice from a lawyer (or worse, their own research on the Internet) outside their province, unless the lawyer is well-qualified to advise on the property law of that province.
Q: How different?
In some provinces, very. British Columbia's system is quite different than Ontario's. In BC, assets are treated as either "family assets" or "business assets," after which the court has a broad discretion to re-distribute property if not doing so would create a situation of "unfairness," having regard to six different criteria:
• The needs of each spouse in becoming economically independent
• The length of the marriage
• How long the parties have been separated
• The date the property was acquired
• Whether any property was gifted to or inherited by the spouse
• A catch-all clause including any other related circumstance relating to the property
Q: Is there anything else I need to know about this equalization payment?
Certain assets are excluded or exempt from the equalization calculations. We will talk more about this in a future column. Until then, happy lawyering!
(Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com)
]]>Ask a Divorce Lawyer: What Are Retained Earnings?tag:www.huffingtonpost.com,2012:/theblog//3.11866582012-01-09T04:16:28-05:002012-03-09T05:12:01-05:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He is here to answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com
Q: What are retained earnings?
In accounting, retained earnings refers to the portion of net income which is retained by the corporation and not paid out as dividends to the shareholders.
Q: Why are retained earnings relevant in family law?
Their relevance relates to calculating a spouse's income for purposes of child or spousal support. Section 18(1) of the Federal Child Support Guidelines provides that where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse's annual income as determined by their line 150 of their income tax return does not fairly reflect all the money available to the spouse for the payment of child support, the court may determine the spouse's annual income to be all or part of the pre-tax income of the corporation.
Q: What does that mean?
It means that the courts can treat a payor has having more income than declared on his/her tax return, where, in the judge's view, the spouse has failed to take into income monies which have been set aside as retained earnings.
Q: When will judges do this?
Case law shows that courts will impute income to the payor in these situations where:
- The payor has failed to demonstrate that the retained earnings are required to replenish or replace essential corporate assets or otherwise maintain the value of the corporation as a viable going concern (Kowalewich v. Kowalewich, 2001)
- Where it is necessary to "lift" the "corporate veil" to ensure that the money received as income by the paying parent fairly reflects all money available for payment of child support. This is especially important in cases of sole shareholders who have the ability to control the income of their corporation (Baum v. Baum, 1999)
In the leading case of Brophy v. Brophy (2002), the judge said the following considerations and questions should be examined in deciding to what extent the court should use its discretionary power to look to retained earnings as a means of imputing income to a payor:
1. Because of the separate legal entity of the corporation, should there be a general reluctance by the court to automatically attribute corporate income to the shareholder?
2. Is there a business reason for retaining earnings in the company?
3. Is there one principle shareholder or are there other bona fides arm's length shareholders involved?
4. What is the historical practice of the corporation for retaining earnings?
5. What degree of control is exercised by the spouse over the corporation?
Q: What's your experience been with this issue?
In recent years I have had many cases dealing with this issue. First, I find that judges do not automatically attribute pre-tax corporate income to a shareholder/payor in every case. They tend to be very interested in the facts, want to know about the particular business and its history in terms of paying out previous retained earnings and will assess each case on its particular facts before providing guidance to counsel about what should happen.
Having said that, I also find that if there is no valid business reason for keeping retained earnings in the company, if there is only one shareholder or the shareholder/payor in question has control over the business, if the company has no previous practice of retaining earnings prior to separation, then courts will generally agree that some pre-tax corporate income should be attributed back to the shareholder/payor. Depending on the facts of the case, I have seen figures ranging from 25 per cent to 100 per cent.
Dealing with pre-tax corporate income cases is not easy and usually requires the assistance of a lawyer and often a chartered business valuator. We will discuss the use of CBVs more in a future column, but for now, happy lawyering!
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.
]]>Ask a Divorce Lawyer: How to Avoid Holiday Disputestag:www.huffingtonpost.com,2011:/theblog//3.11568342011-12-19T12:04:34-05:002012-02-18T05:12:02-05:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/
In talking with clients, I learn that even when the couple was an intact family there was
trouble during the holiday season. "Do we go to your parents' or mine this year?" "For how long? That long???" "My church or yours?" "If we go away, how will my mother get to spend time with her grandchild?"
Things seem to magnify after separation. Over my 16 years in practice, I have spent countless hours assisting clients resolving Christmas access disputes, mostly out of, but sometimes in, court. Here are some tips I hope you find helpful in navigating these choppy waters at this time of year:
1) Generally, most separated clients equally share the entire child's time they are out of school over the Christmas break. The exception seems to be very young children who are not yet able to spend time away from the primary parent for extended periods;
2) Clients usually split the entire Christmas break period so that one parent has the child in the first half in even-numbered years and the other parent has the child in the first half in odd-numbered years;
3) During the Christmas break period special time is usually carved out for access during Christmas Eve and Boxing Day. Usually, but not always, things are structured so that one parent has the child on Christmas Eve overnight to Christmas Day at noon, with the other having the Child from Christmas Day at noon to Boxing Day at noon. They then alternate every year;
4) For newly separated parents, this year should prove slightly easier to negotiate than past years. Since the last day of school for many is Friday December 23, and the first day back is Monday January 9, I foresee most parents carving out the period from after school on December 23rd to Boxing Day and splitting the balance of time (December 27 to January 8) equally, with the exchange occurring on January 1st or 2nd;
5) For high-conflict families, an extreme amount of detail is required in agreements and court orders. I regularly include specifics like deadlines for notification of travel plans, the precise times for pick-up and drop-off, the location of where they will occur and who can be present. For low-conflict families, we often will include a clause which simply provides the general parameters of the visitation with "details to be agreed upon by the parties;"
6) Although it is common for parents to vacation with their child during Christmas, I rarely see the other (non-travelling) parent agreeing for the trip to interfere with their vacation time unless he/she must work or the parties have an agreement where the following year the non-travelling parent can take the child away during Christmas on the other parent's time;
7) For newly separated families, it is not uncommon to share festivities with the children together. I have one case now where the parties have agreed to put up stockings and have dinner together. The non-resident parent will then leave after the children go to bed. They plan to alternate homes next year; and I say "plan" because things become complicated when a new partner is introduced into the mix. New partners mean more scheduling issues, often more conflict, and less likely the parents will celebrate the holiday with the children together as one big happy family. Of course, the best of all worlds is just that.
8) A judge I used to frequently appear before was fond of saying the only good things about being a child from a separated family is that you get two birthdays and two Christmases. He also said the key is to love your child more than you dislike the other parent.
On that note I take this opportunity to remind our readers to love your children more than you dislike your former spouse and wish you all a happy and restful holiday season.
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com
]]>Ontario's Integrated Domestic Violence Court Safeguards Women's Rightstag:www.huffingtonpost.com,2011:/theblog//3.11418342011-12-12T23:24:15-05:002012-02-11T05:12:01-05:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm D. Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.
With last week's anniversary of the Dec. 6 massacre still fresh in our minds, I can think of no better way of calling awareness to the epidemic of domestic abuse than promoting to our readers the Ontario Court of Justice called the Integrated Domestic Violence Court.
To do so, I recently had the pleasure of interviewing the Honourable Mr. Justice Joseph W. Bovard, a sitting judge in the Ontario Court of Justice in Toronto, who explained the importance of this innovative system and how citizens can use it to resolve difficult legal issues.
Q: Thank you for agreeing to speak with me. Tell our readers about the Integrated Domestic Violence Court? For starters, what is it?
A: First, we are doing a lot of outreach now with different sectors of the legal profession about the Integrated Domestic Violence Court (IDVC) so I am happy to talk with you about it. The IDVC is a court that handles both criminal and family law cases in the same court, before the same judge, where there is a criminal charge of domestic violence against one of the spouses and concurrent family law proceedings with respect to custody, access, child or spousal support.
Q: You say a domestic violence offence. Exactly what kinds of charges are we talking about here?
A: In order to qualify for the IDVC, the accused must be charged with a domestic violence offence and there must be ongoing or contemplated family law proceedings. We are talking here about any domestic violence case where the Crown elects to proceed by way of summary conviction (which generally means cases where the penalties are lesser and only heard in the Ontario Court of Justice and no jury trials). Examples of the kinds of cases we are referring to here include criminal harassment, threatening, assault, assault causing bodily harm and sexual assault.
Q: At present we have criminal law courts and family law courts. Sometimes they're in the same building, sometimes not. What makes the IDVC so special?
A: The hallmark of the IDVC is that it brings family and criminal cases together in one court and enables everyone involved with the family on both sides of both cases (i.e., the criminal lawyer for the accused, the Crown, the parties' family lawyers, and the lawyer and social worker for the children, if necessary) to be present and participate at the same time in a meaningful way before one judge with experience in both areas of the law. Often, family court issues are "on hold" until the criminal issues are dealt with and dealt with without the benefit of the criminal court participants. With everyone under one roof in front of only one judge, the IDVC involves less court time, fewer court appearances, less duplication and faster, more efficient results. It leads to more holistic justice and better decision-making by the court for the family, thereby enhancing the safety of victims of domestic violence.
Q: Can you give me a specific example of how things work better in the IDVC?
A: Certainly. Routinely, an accused must comply with various bail conditions that restrict contact with the complainant and/or children until the charge is resolved. The family court judge cannot vary these terms; only the criminal court can do it. This makes it very challenging when the parties' family lawyers are able to reach agreement on contact by the accused with the spouse and/or children and want to have these terms reflected in a family court order. With the IDVC we will avoid this predicament and contradictory court orders with regard to when an accused can contact a spouse and/or children because all parties and their counsel will be present and have input together. This will make things significantly smoother and easier for everyone, including the children.
Q: Where exactly is the IDVC located and who are the presiding judges?
A: At present we sit at the Ontario Court of Justice at 311 Jarvis St. in Toronto. I along with Madam Justice G. Waldman, who is one of the innovators of this project, are the presiding judges. Both of us have experience in family law and criminal law cases.
Q: How often is the IDVC sitting?
A: At present, only twice a month, but we hope to expand the number of days if and when our caseload increases.
Q: What needs to happen to get a case into the IDVC?
A: First, if the person has a lawyer the lawyer needs to explain the IDVC to his/her client and ensure there is full consent. Assuming there is, the lawyer then contacts the Community Resource Coordinator, Ms. Marijana Milinkovic (idvc.crc@mothercraft.org) Tel: (647) 969-3514. She will contact the other party (or parties) and see if they are willing to participate. If so, she then sends out an information package including the consent form, and once the paperwork is processed, the case is moved to the IDVC.
Q: What if a person is unrepresented?
A: If a person is unrepresented, Ms. Milinkovic, the court clerks or duty counsel can assist the person when they appear in the domestic violence set date court in Old City Hall, or when they file an application in family court.
Q: So participation is voluntary?
A: Yes, at this point, although we are trying to change our procedure so that in the near future any application to family court and domestic violence case in criminal court will be automatically streamed to the IDVC, provided they involve the same parties. However, the Crown always must consent for the criminal case to be heard in the IDVC.
Q: What if the case involves property issues?
A: Because the Ontario Court of Justice has no jurisdiction to deal with property issues, they would have to be dealt with in the Superior Court of Justice.
Q: What is the catchment area for the IDVC?
A: At present we are only drawing cases from Old City Hall (criminal court) but we are in discussions to expand to drawing from other courts. No decision has yet been made on this. Our family cases are drawn from 47 Sheppard Ave. and 311 Jarvis St.
Q: How novel is this kind of court?
A: This is the first integrated domestic violence court in Canada as far as I know. In the United States, however, they have had integrated domestic violence courts for over 10 years in places like New York, Washington and Ohio. In fact, in New York they have legislation by which courts can order litigants into this court.
Q: I wish you the best of luck with the IDVC and thank you again for taking the time for this interview Your Honour.
A: My pleasure.
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.
]]>Is Divorce Getting Nicer?tag:www.huffingtonpost.com,2011:/theblog//3.11286112011-12-05T00:33:50-05:002012-02-03T05:12:01-05:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He is here to answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.
Someone recently sent me an article in the New York Times called "The Good Divorce" (Oct. 28, 2011) by Susan Gregory Thomas. Its main thrust is that for the most part, Generation Xers (born between 1965 and 1980, which includes yours truly) are doing divorce "differently." By "differently," she means more civilly, with less conflict and with more focus on the children.
I agree with her, but only to a point. While it is true that there is less fighting these days in law offices and in court about some topics, there is, I would submit, more fighting than ever on others.
Thomas refers to the rise of joint custody as an example of how things are now done differently. She cites the number of states in the USA which now uphold joint custody versus 30 years ago and the rise of collaborative family law.
And she's right. In my practice, I have seen a dramatic rise in the number of cases now settled by joint custody versus sole custody, compared to 10 years ago. In my view, this is due to the following factors:
Fathers taking an increased interest in caregiving, previously the exclusive domain of mothers, including making sacrifices at work for the benefit of their children;
Mothers taking an increased role in the workforce, with better paying careers than in the past, requiring more responsibility and time away from home; and
Judges, many of whom were experienced family lawyers prior to their appointment, understanding both of these points and being unwilling to marginalize one parent by making the other sole custodian.
I find that lawyers and judges go out of their way to convince clients that joint custody is the ideal and something they should agree on, even if it is clear they do not get along at times. Judges are often quick to point out that joint custody simply means the parties must agree on any change of anything significant dealing with religion, health or education, and that most of the time most parents agree on these key tenets. In my experience, while we still see the occasional battle for sole custody, they are usually limited to cases involving:
Absent parents or parents who have had historically limited involvement in their child's lives;
Violence against the parent and/or child;
Substance abuse issues in one of the parents;
Mental health issues; and
Parents who historically have shown a complete inability to communicate or co-parent.
In contrast to battles for sole custody, which seem to be on the decline, battles over reviewing and changing child and spousal support seem to be -- again, at least in my office -- on the rise. Often after a drastic change in income due to a job loss or a large bonus, large swings in income cause major headaches for clients, lawyers and judges who must then figure out what income should be used for child and spousal support on an ongoing basis, what income should be applied retroactively and to what extent should the former spouse and children be allowed to share in post-separation earnings or lack thereof.
Complicating factors include a pre-existing agreement, which may be vague or hard to interpret or which didn't forsee certain changes, cases where payors change careers or take lower-paying jobs and are accused of doing so to frustrate their former spouses' entitlement, and situations where one-time payouts like cashing in options or large bonuses create big "blips" in income that the other wishes to share in.
In future columns we'll delve into some specifics of these situations. For now, suffice to say that while certain aspects of family law are "done" differently than in the past, there are still many hot-button areas where conflict rears its ugly head on a daily basis.
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.
]]>We're Not Married -- Do We Need a Cohabitation Agreement?tag:www.huffingtonpost.com,2011:/theblog//3.11152932011-11-28T09:06:34-05:002012-01-28T05:12:01-05:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.
Q: In your last column you mentioned something called a "cohabitation agreement." Can you explain what this is and why I might want one?
A: A cohabitation agreement is a signed agreement between two non-married people who are either living together or planning on living together. It deals with their rights and obligations in the event of a breakdown of the relationship. Cohabitation agreements are a terrific way of avoiding expensive and nasty disputes after a relationship fails since all of the parties' rights are spelled out in a contract.
Q: Do you have to have a lawyer to get one completed?
A: Technically no, but in order for both parties to be properly protected and to ensure the agreement is safe from attack later on if the relationship fails, by far the best practice is for lawyers to be involved. I almost never see a cohabitation agreement where only one side has counsel.
Q: Can we both use the same lawyer? We're completely on the same page.
A: No. A lawyer who represents both clients in a family law case, even a cohabitation agreement where both parties may appear to have the same interests, is looking for trouble with the Law Society and with one of the clients if the relationship breaks down. Both sides should have a family lawyer experienced in drafting these kinds of contracts.
Q: Why do we need lawyers anyways? What will they do for us?
A: First, they will listen to you and give you advice as to whether or not you really need one (not everyone does). Second, they will advise you as to what key terms you can, should, or want to include. Third, they will deal with the other lawyer, either in person or by correspondence, to help you negotiate the agreed-upon terms. Fourth, they will either be the primary drafter of the agreement or review what the other lawyer prepared and give you advice as to whether it's acceptable or some provisions should be changed.
Q: Do we need to exchange any financial documents? We know what we each have, so it seems like a waste of time.
A: Most good family lawyers will refuse to do a cohabitation agreement unless both parties attach detailed schedules of their assets and liabilities to the agreement. Doing so is important because it prevents the agreement from attack later on. The Ontario Family Law Act provides that a cohabitation agreement can be set aside if a party fails to disclose to the other significant assets, debts or liabilities existing at the time of the contract.
A: In my practice, sometimes instead of schedules I have my clients complete the Form 13 Financial Statement, which provides even more information than a simple schedule. I also accompany the form with key supporting documentation like tax returns and business financial statements, even if the other side has not requested it.
Q: Can my partner and I agree on anything in a cohabitation agreement? Are there limits as to what we can include?
A: Cohabitation agreements can deal with issues about ownership in or division of property, spousal support obligations and the right to direct the education and moral training of their children, but not the right to custody of or access to their children.
Q: Final question, what happens if we have a cohabitation agreement and we then marry?
A: If the parties to a cohabitation agreement marry each other, the agreement is "deemed" to be a marriage contract, commonly known as a "prenup." We'll talk about prenups in a future column but, for now, all you need to know is the agreement continues and binds the parties during marriage.
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.
]]>Ask a Divorce Lawyer: What Is a Beneficial Interest in Property?tag:www.huffingtonpost.com,2011:/theblog//3.11015132011-11-21T00:19:21-05:002012-01-20T05:12:01-05:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.
Q: Can you explain the difference between a "legal" interest in property vs. a "beneficial" one? My lawyer has mentioned this a few times and says it's important to my case, but I'm too embarrassed to tell him I just don't get it.
A: This comes up all the time in my cases. A legal interest in property (usually, but not always, real estate) refers to whose name is on the paperwork. A beneficial interest means who really owns the property, having regard to the parties' contributions and intentions.
Q: Aren't these two interests usually the same?
A: Usually, but not always. Often, a self-employed individual will place property which he paid for and contributes to in the name of his spouse in order to protect the family from creditors. After separation, sometimes there is a dispute about whether the self-employed spouse should receive half the value of the property or not.
Q: Why does it matter? I thought all property is divided equally in family law.
A: It matters because in most provinces (they differ in respect of property law) property owned by the spouses is valued at a specific date. In Ontario, where I practice, they call this the "valuation day," which is usually the date the parties separate. Any increase in property post-separation belongs to the titled spouse and is not shareable, which means if a house increases significantly in value after separation, but only the titled spouse is the true owner, the non-titled spouse will not get to share in that increase.
Q: What kind of evidence does a spouse need to prove they have a beneficial interest?
A: The best kind of evidence is proof of monetary contributions to the property, both during and after marriage. Non-monetary contributions like time and effort in doing a renovation are significant too but harder to prove and quantify. Evidence that at one time the home was in joint names and of debt by the non-titled spouse at the time the home was put into the other spouse's name are also highly valuable.
Q: My partner just moved into my home. It's in my name. He is helping me with my mortgage payments. Does this mean he has a beneficial interest in my home?
A: Depending on the amount of the contribution and the length of time that's passed since you've been cohabiting, he may. The best bet is to consult a lawyer about a "cohabitation agreement," which we'll talk about in our next column.
]]>What Kind of Divorce Client Are You?tag:www.huffingtonpost.com,2011:/theblog//3.10805542011-11-14T00:39:44-05:002012-01-13T05:12:01-05:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.
Magnet Holders and Dust Collectors
Even though I've had over a thousand clients so far in my career, they are all easily divided into two groups: magnet holders and dust collectors.
Magnet holders are clients who take their newly signed separation agreement and put it on their fridge with a huge magnet. They refer to it daily, like their own personal constitution or Bible, and when the other parent does something which falls afoul of even the most minor of terms, they send an email and seek some kind of corrective behaviour. When the email does not result in the desired change, they call their former lawyer and a few days later a letter is received threatening to take the case back to court at much expense and cost.
Dust collectors are the opposite. These clients put their newly signed agreements in a drawer and let them collect -- you guessed it -- dust. When things change or new issues crop up which no one thought of in the negotiations, they do not threaten to re-open the case or rush to the lawyer's office seeking advice. They speak to the other parent, try to work with them and spend their time and energy on resolving the problem.
You will not be surprised to hear me advocate for dust collectors. Research shows, time and again, that children of divorce do better if their parents focus on being dust collectors than magnet holders. It matters not a whit whether the children come from rich or poor families, their cultural background or what part of the city or country they live. The single biggest predictor of how well children do post-divorce is the level of conflict between the parents.
The interesting thing is this. When I explain the two kinds of "personalities" to clients and warn them about the pitfalls of being a magnet holder, guess what I hear?
"Oh, don't worry about that, Brahm. I'm the dust collector in the family. My ex, however, she's the magnet holder".
So, either I've been the luckiest divorce lawyer in the country all these years or else there's a discrepancy between how clients perceive their own actions and how their former partners perceive them.
What sort of issues crop up that can help you determine whether you're really a dust collector or magnet holder?
Pick-Up and Return Times: How do react when your former spouse returns the children 10 minutes late? How about 40 minutes? Do you slough it off, ask for the children to be returned early next time or do you ask for the next visit to be forfeited?
Switching Weekends: How well do you respond when your former spouse announces he'd like to switch weekends because his girlfriend's mother's brother is getting remarried and they'd like your children to be in the wedding party -- on your weekend? Do you agree to make the dresses or tell him "over my dead body"?
Introducing New Partners: Even though your separation agreement states that neither of you will introduce the children to a new partner for six months, you bump into your own children with your former spouse and his new beau (arm and arm) at the mall -- a week after the agreement is signed. Do you all sit down for a friendly latte or do you duck into Abercrombie and Fitch pretending not to notice them?
If you find yourself falling short on these examples, you're not alone. It's not just clients who can be divided up into these categories: we lawyers can too. So, when you're choosing yours, try to find one known for helping clients resolve disputes, not foster them. If you have a good lawyer, she will work with you and help you determine which issues are truly worth fighting about and which are better left -- you guessed it -- in the drawer.
Collecting dust.
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.
]]>Ask a Divorce Lawyertag:www.huffingtonpost.com,2011:/theblog//3.10767402011-11-07T00:04:16-05:002012-01-06T05:12:01-05:00Brahm D. Siegelhttp://www.huffingtonpost.com/brahm-d-siegel/Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. Starting this week he will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.
I am very excited about this column. For years family, friends and clients have been urging me to write a book about my cases. I'm not interested and frankly speaking, don't have the time.
What does interest me however, is connecting with the public about family law issues and I'm looking forward to doing just that with this column. Each week I will answer reader questions about a particular aspect of divorce law. I'll provide a basic understanding of the law, some helpful tips and sometimes, depending on my mood, share an experience or two from one of my cases. Once in a while, instead of reader questions, I'll post a column about a particular decision or subject of interest; I may even spice things up with an interview with a lawyer who just completed a noteworthy case, a judge or even a client who's consented to having their information in the public domain.
Having done this for 16 years now, I'm frequently asked the same questions at get-togethers and parties. "How can you do what you do?" "Isn't it hard to see all that fighting all the time?" "Why do you choose to be a divorce lawyer?"
My answers are always the same. Yes, it's hard to be around conflict all the time. Managing conflict is what we do as divorce lawyers: conflicts with our clients, conflicts with opposing lawyers and, of course, conflict with judges. Sometimes the stress of it all can get exhausting and it is not uncommon for me to fall asleep not long after my young children go to bed.
But, I do what I do because I enjoy -- and believe I'm good at -- resolving family law disputes. To me there is nothing more satisfying in our line of work than starting to work with a client who is extremely upset, unsure of her rights and financially vulnerable and seeing that same client at the end of the process with a settlement and signed agreement, ready to start a new chapter in life.
I also very much enjoy the challenge of persuasion. Whether it be persuading the judge to see things from my client's point of view, persuading the other lawyer to consider my client's position or -- as often the case -- persuading my client to look at things a different way (often, the other side's). Hand in hand with persuasion goes the art of oral advocacy in court. There is nothing that makes you feel more alive than a highly contested court date and the give-and-take between lawyers in front of an experienced family court judge is something I really enjoy, despite the stress.
Finally, I chose to be a divorce lawyer for one simple reason, because I believe it is by far the most rewarding area of law. Far more emotional (some would say "messy") than all other fields, there is no other profession which combines the need to be an expert in the law with a healthy dose of therapist and a dash of financial common sense. It is also, I believe, the most valuable. Everyone knows nothing affects children like a divorce. Working with clients who are going through a divorce, particularly those with children, is far more rewarding to me, than, say, helping corporation A buy corporation B. With all due respect to my corporate lawyer friends, that's just how I feel.
So, with that off my chest, I welcome you to the column and look forward to answering your questions about family law! See you next week!
Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.
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