Ontario Family Law Blog : Barrie Lawyer & Attorney Brian Galbraith : Simcoe County, Canada Divorce, Separation, and Collaborative Law

Here is another great video. It's another funny one! The first musical!! 

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Summer time... and the living is easy....or so the song goes. 

If you are separated, you want to make the most out of your time with the kids. It is tempting to spend lots of money, schedule every minute of the day and do every activity possible with the children. Your time is limited so you want to make the most of it.

I know... because that's my personality too. 

Sometimes it is the mundane time spent together that can be the most memorable. Last summer my 15 year old son had to earn some money to contribute to his expensive mountain bike. Finding work for a 15 year old is nearly impossible so, I had him seal my paved driveway. As you can see by the photos, my 12 year old pitched in too!  

I took the time off work to do the work with him. This clearly was not a good decision economically but it was a great lesson about the value of money to my son.  It was hard work and took forever but over the course of the week, we got it done. Our driveway is now (in our humble opinion) the best sealed driveway in our community! He "paid off" his debt to me for his bike and we had some great time bonding while swishing tar over the driveway in the heat of the summer. 

It wasn't a trip to Disney Land but it stands out as one of the best events of the summer last year. My sons and I were working together. It was great. 

Richard Sharp, a lawyer in England, in his excellent blog called Family Law Collaborative Divorce did a post about summer time access in which he offers good advice for separated parents about summer access. 

My last blog was called "Five Ways to Resolve Summer Access Scheduling". Richard's blog offers complementary advice.  Richard writes:

• Do plan early and commit to decisions made - Plan the arrangements for the summer holidays as early as possible. If you commit to doing something make sure it is followed through. Last minute clashes and changes are not easy to resolve. Children need their parents to make decisions and to stick to them

• Do support your child’s contact with the other parent – Be positive about your child spending time with their other parent. Let the children know it is OK with you that they are going away and that you will be OK too whilst they are away. It’s best for kids when both parents can be supportive of their activities and share in their excitement.

• Do help children maintain contact with the other parent – Provide the other parent with contact information and details as to where the children are going to be and who with. Let the children communicate with the other parent whilst away.
And

• Don’t talk through the children - It is tempting to relay information through the children when talking with the ex is difficult. But messaging between households is a burden children shouldn’t have to bear. Make sure you are the one delivering news about trips you are proposing to take and scheduling needs surrounding them.

• Don’t ambush the other parent - When making holiday plans, don’t set the other parent up. “I would really love for you to come with me to Spain, but it’s really up to your Mum to say yes” is neither fair on the child nor Mum. Instead, “A trip abroad would be lots of fun but before we can make plans, I need to talk with Mum to see if we can work out the details.”

• Don’t make your kids pay the price - If you make a decision to foot the holiday bill or move your schedule around to make a trip work, don’t make your kids pay the price. Whilst a trip abroad may be a wonderful experience for the child, it probably won’t be so wonderful for very long if the child has to listen to what Dad did or didn’t do to help. Children do not want to take sides – don’t make them.

And finally …..Conflict is the major cause of unhappiness and poor outcomes for children. Let’s have family fun in the sun this summer by focusing on the needs of children.

Summer holidays are a great opportunity for you to deepen your relationship with your children. Enjoy every moment together. Swish some tar on your driveway together.

Don't forget the old saying: "families that spread tar together, stick together!" .... or something like that....

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Scheduling summer access can be a challenge. If you are a planner, you'll want to schedule your holidays with the children well in advance so that you can, of course, make plans. If you are a more spontaneous person, planning in advance may seem really inconvenient and unnecessary. Here are some ways of resolving (or avoiding) this annual challenge:

1) Negotiate an agreement as to when you will each exchange dates for summer. The planner will want it to be well in advance of summer whereas the spontaneous person will be happy with a shorter time-frame. Come to an agreement as to the schedule and then both respect it. For example, "Tiger and Elin agree to determine the sharing of care of the children during the children's summer vacation each year before June 1st with each parent having care of the children equally."

2) You can define each parent's share of the summer in very specific and unambiguous terms such as "Tiger has care of the children every July and Elin has care of the children every August, alternating each year".

3) Some parents will simply continue the normal schedule since both are working during the children's summer vacation. So they may agree "The regular rotation of the children between Tiger and Elin's home will continue during the children's summer vacation except that the drop off and pick up of the children will be at the children's daycare or summer camp." In this case, neither Tiger nor Elin will have care of the children for any special summer vacation time.

4) Other parents will agree to a different rotation of the children from the regular schedule. They may have care for the children on a two week rotation during the summer months only. The issue can sometimes be when the rotation begins each year. A special event such as Labour Weekend can be used as a triggering event. For example: "The children will be with each parent on a rotating two week basis such that the children will be with Elin during the PGA Canadian Open in Toronto each year."

5) Often both parents want some time alone with their children for their "vacation" each year with the  remainder of the summer holidays going according to the regular rotation. For example, "Tiger and Elin may each have the children in their care for 14 consecutive days each summer. Tiger must choose his summer vacation dates by May 1st each year and Elin must choose her dates by June 1st each year in even numbered years with the opposite occurring in odd numbered years. The care of the children for the remainder of the children's summer vacation will be according to the regular parenting schedule except pick up and drop off shall be at Elin's home (instead of at the school)."

Regardless of your efforts to plan the perfect summer vacation with your children, you always need to be flexible should special events arise. A teenage child may have to take summer school thus scuttling your plans to go camping. Your spouse's family reunion may be planned during your time with the children. Your child may be invited to a birthday party on the day you planned to go to Wonderland. You may even be invited to play in a PGA golf tournament when you are scheduled to have the kids.

If last minute changes are necessary, treat your ex spouse the way you would like be treated and remember to always do what is best for the children. Consider the issue from the children's point of view. Remember the clichés: "take the high road", "bite the bullet" and "do the right thing" when faced with a last minute change in the schedule. 

Lastly, if you and your spouse's names are "Tiger" and "Elin", I have some clauses ready for your use. Just give me a call.  

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Have you ever planned a great day of summer activities and then woke up to rain? It's disappointing and upsetting. 

I remember planning an outdoor birthday party for my son (age 7 at the time). I was all ready to host ten of his energetic friends for about 3 hours doing tons of fun activities outside. And then it rained. We had to be inside and I had nothing planned for inside our small home.

We played charades for about 10 minutes before the kids became bored and started asking "what is there to do?"  I looked at my wife and said "Hmmm.... two hours, fifty minutes to go! Now what?"   Well, we got creative and found lots of indoor things to do but for a few minutes, it was sheer panic.

I wanted to host the best birthday party for my son and made great plans so it would happen. But, as fate would have it, my plans were scuttled.

Has this ever happened to you? Perhaps you planned an activity with your children when your plans were "rained on". Perhaps your teenage child decided to go to a friend's home or your ex spouse called at the last minute to change weekends. Maybe you had to spend "your weekend" helping your son or daughter complete a school project or study for exams when you had planned some special event with them. It's frustrating. When you are divorced, time with the kids is very special and you always want to make the most of it. Right?

Thinking back to that birthday party, I had a choice. I could have become angry and frustrated making the party a disaster or I could have chosen to make the most out of the situation. On that occasion, I chose wisely and made the most out of the day. In the end, it was a great birthday party. Everyone had fun.

I haven't always chosen wisely. Sometimes I listen to the other voice in my head: the negative voice. I seek to find blame, become angry and get very upset. I make the day a disaster by my own attitude.

When you are divorced, it is especially tempting to get all riled up when your ex spouse scuttles your plans. I try to remember that when plans get changed that I have a choice: make the most of it or make things worse.

Wouldn't it be great if every time our best laid plans go awry, we choose wisely and just made the most of it?

Tomorrow, we are planning on spending the day canoeing with the kids. I hope it doesn't rain. But if it does...I won't be "ready" but I hope I make the most of it.

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 My father was a great man. I loved him dearly and already miss him. He died about two weeks before his 89^th birthday. 

Born in Vulcan, Alberta to farmers, my father was known affectionately as “Curly” since he was 2 ½ years old.

The story goes that his mother gave him the nickname to avoid confusion with his Uncle George with whom he shared the same first name and was living with them at the time.

The name stuck.   He never heard his mother call him anything but “Curly” his entire life.

My dad was known as “Curly” to everyone, not just family.

I fondly remember walking the floor of my dad’s factory with him when I was about 12 years old. Dad was the president of the company. Every employee endearingly called out “Hi Curly!”

He knew the first names of most of the 150 or so factory workers too. He was just that kind of guy. He respected everyone and they respected him. He cared about everyone.

He had another nickname. He was also known as “Mr. Rotary” to many. My father gave back to his community and the world through his deep commitment to Rotary. Dad had over 50 years of perfect attendance at weekly meetings of Rotary, attending meetings of clubs around the world.

He was president of his club, District Governor, a member of the Board of Directors and eventually rose to Vice President of Rotary International and you know Rotary is in almost every country of the world.

During his tenure as Vice President of the international association, he was instrumental in changing Rotary’s rules so that women could become members. “Women are changing the world” he said. “They need to be a part of Rotary”. He was also deeply involved in Rotary’s “Stay in School” program and Rotary’s efforts to wipe out Polio throughout the world.

He helped establish the Calgary Rotary Foundation which has raised millions of dollars for charity. He really made a difference locally and internationally.

To many Rotarians in Calgary, it may be the small things he did that they will remember most. My Dad called every Rotarian in his club and in the 3 clubs he was an honorary member (that’s over 500 Rotarians) on their birthday every year to wish them well and to share some personal fellowship. This small gesture moved many people.  

My father was a great source of wisdom. My three teenage sons regularly hear me quoting “Grampa-isms”. An oft said one repeated by me is “You’re down on things you’re not up on!” Now, isn’t that true?

Regarding employees he said “Don’t ask someone to do something you wouldn’t be willing to do yourself!”

He did not dwell on mistakes and instead would say “It’s like a bad haircut. Give it a couple of weeks and it will fix itself.”

He always encouraged us to stay in school by saying “Get an education. It’s the only thing the banks and the government can’t take away from you… but their working on it.” It worked. Of his four kids, we are two lawyers and two doctors.

Regarding money, he said "Spend it carefully. You can only spend money once!"

He tried to live every day by the Golden Rule: “Do unto others as you would have them do unto you.”

He always chose to look for the good in others and assumed everyone was just doing their best. I think it was this positive attitude toward humanity that endeared him to so many.

I held my father is such high regard that during my university days when I introduced Dad to my girlfriend at the time, she was surprised he was that not a very tall man. I asked why she was surprised about his height and she said “The way you described him, I thought he would be a giant of a man!” In so many ways, my father was a “giant of a man” to me and he always will be. 

I will not only miss his sage advice but also his great jokes. Dad loved jokes, especially his own jokes. Many a time, he would burst into such a belly- laugh that he could not even finish telling the joke! 

Even if the joke wasn’t that funny, you couldn’t help but join in with a full out belly laugh every time (even if you had heard the joke many times previously and we usually had)!

Speeches. I doubt there is anyone, politicians and preachers included, who has given more speeches than Dad, especially at Rotary meetings.

On more than one occasion, he was attending a Rotary meeting, minding his own business, when he was asked to replace to the guest speaker who could not attend at the last minute. Dad accepted the invitation, kept eating his lunch (we Galbraiths never miss a meal) and jotted a few notes on his napkin. He then spoke to the assembled group for 20 minutes without a hitch. He was informative and entertaining and frankly, just amazing.    

Grampa loved all of his children,  grandchildren and his great-grandchildren.

He was especially pleased to hear that he was going to have another grandchild in November. Just days before his death, I was able to share with him that my wife, Nicole, and I will be bringing a new life into the world in November.

It is so sad this new baby won’t know Grampa in person but no doubt s/he will hear many Grampa-isms.

Ironic , isn’t it? The same week we are announcing a new life is about to begin, Dad’s life ends.

Two nights before his last breath, I told Dad the truth.

I told him that he was approaching the end of his life and he would soon be seeing Brent, his son and my brother who died at 2 ½ years of age, his parents, Auntie Rena and so many of his great friends and family who had passed away.

I encouraged him to accept God’s peace and rejoice in knowing God’s love and forgiveness.

I told him he was a wonderful role mode and inspiration to me and my boys and so many others.

I told him that he was deeply loved by his family and so many friends from around the world.

I told him God loved him.

Dad at first seemed stressed hearing this message. Who wouldn’t be stressed? But then he began to relax in to the hospital bed, realizing the truth of my message. The tension from his forehead began to release and he became more peaceful.

Dad tried to say something to me but his failing body wouldn’t let his words come out.

I just said “I know Dad. I know you love me and you love all your family. I know. And I love you too Dad. Just rest now Dad. Just rest.”

Dad then took hold of my thumb, gripping it as I had once done his thumb when I was his little boy. He gripped my thumb until he fell asleep. I spent the night at his bedside, watching over my father. I never saw him awake again.

Dad passed away peacefully less than two days later.

Thank you for everything Dad.

I love you.

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The following is a hilarious video about  the Collaborative Team Process. I love it. This video is more entertainment than informative but a refreshing change from the usual "talking heads". Well done. It is the winning video from the Virginia Collaborative Professionals video contest. It is a real inspiration. Congratulations!

This next video received an Honorable Mention. It has a story line and appeals to the emotions of the viewer. Another great video. Congratulations!

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I put together this short video to introduce our firm to the public. I hope you find it interesting. The video is on You Tube. Here is the link: http://www.youtube.com/watch?v=fO7_9lWOaJU 

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Meryl Streep, Steve Martin and Alec Baldwin star in "It's Complicated". I thought it was a comedy but discovered it was much more.

Here is the trailer....

Meryl Streep's character is a middle-aged divorced woman who falls for her ex-husband, played by Alec Baldwin, ten years after having divorced him. She has three adult children who are caught in the middle, again. Steve Martin's character is recently divorced and pursues Meryl romantically. It sounds comical, and there were moments that made me laugh, but the profound moments outnumbered the giddy ones.

The lasting message I took from this movie is that sometimes you can't completely find closure after a divorce, even after ten years. Divorce is like a death in the family except you keep bumping into the other person, reminding you of the possibilities, the guilt and the consequences of the divorce on your kids. A negative feeling lingers on long after the dust has settled.

Although Alec Baldwin's character had an affair, Meryl Streep's character realized that she had made mistakes contributing to the end of their marriage too. Both characters regretted their mistakes, acknowledged their magnetic attraction to each other and their desire to make right those things that went wrong ten years earlier. It was poignant, thought provoking and interesting.

If you are looking for a laugh, don't watch this movie. If you are willing to look at the challenges of life after divorce with children, watch this movie. You will soon understand why it is called "It's Complicated."

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My financial planner suggested to me that divorces are a better investment than weddings. “What are you talking about?” I asked curiously. She retorted “Well, as I see it, clients probably spend the same or more money on their weddings knowing full well that almost 50% end unhappily. On the other hand, divorces are almost always “forever and ever!”

I enjoyed a good belly laugh! She had a point!

Most families are happy to spend money on a wedding because it such a happy occasion. I remember my weddings (both of them) as two of the happiest days of my life. They were filled with optimism, love, friends and family. My first wedding (when I was in law school) was paid for by our parents but the second one was paid for by us. I do not regret a dime we spent on that joyous event.

On the other hand, I did not relish spending money on legal fees when I went through my own divorce. Yup. Even though I had been a divorce lawyer for 13 years at the time of my own divorce, I still retained my own lawyer. I took heed to the old adage “A person who represents himself in legal proceedings, has a fool for a lawyer”.

If you are facing a divorce, I bet you are afraid it will cost a fortune. I don't blame you. I have heard some horror stories too.

So, what are the costs of a divorce?

It depends on what process you use and the amount of time it will take for your lawyer to help you resolve all the issues. Lawyers and their staff bill on an hourly basis.  

Kitchen Table: Many people get legal advice and then negotiate a deal directly with their spouse. One spouse becomes my client and I offer advice about their deal. Assuming it makes sense, I will then draft a separation agreement based on their agreement. Most agreements are usually in the range of about $1,200 to $1,500 at our firm. This is an inexpensive process but requires that you and your spouse are able to negotiate together without the help of anyone. 

Mediation: The mediator is a neutral third party who will help facilitate you and your spouse negotiating a deal. Once it is completed, a mediation report is sent out to the lawyers. I review the report with my client so s/he understands the range of outcome according to the law. If the deal still makes sense, I will again draft a separation agreement based on the mediated agreement. The cost is usually in the range of $1,200 to $1,500.

Independent Legal Advice: Whether a “kitchen table” or mediated agreement, the other spouse should get independent legal advice (ILA) before signing the separation agreement. I always prefer my client’s spouse to get ILA so that s/he can’t attempt to wiggle out of the agreement in the future because s/he did not understand the terms of the agreement when they signed it. So, ironically, I want my client’s spouse to have ILA to protect my client, not so much to protect the other side. 

If the other spouse just refuses to get ILA, I will insist that they sign a waiver of ILA which simply says they were encouraged to obtain ILA but chose voluntarily to waive their right to ILA before signing the agreement and that they understood the meaning of the agreement before signing it.

Traditional Negotiations: If I represent my client in a traditional negotiation, the costs can range from $2,000 to $50,000 or more. I know. That's a pretty big range! Often traditional negotiations will lead to arbitration or court so the costs can spiral out of control.

Court: The court process is very costly. Even the simplest court case will cost at least $10,000 and most are in the range of $15,000 to $25,000. If the case goes to trial, the costs can be two or three times higher. I have heard of some cases where clients have paid over $150,000 in legal fees and these are normal local people like you and me... not Hollywood stars with money to burn. Some crazy cases can result in legal fees of over a million dollars but those are rare.

Collaborative Practice: A far more cost effective process than the court process is the Collaborative Team Practice process. In a Collaborative case, you and your spouse each retain your own lawyer to help you negotiate an agreement. Your lawyer will offer legal advice and ensure the resulting agreement is legally enforceable. At the beginning you and your spouse, and the professionals, sign an agreement that they will not go to Court. If one chooses to go to Court, both parties have to find new professionals including new lawyers.This has a huge impact as everyone is committed to negotiating an agreement.

To keep the costs to a minimum, the parties work with a Divorce Coach who will help the clients manage their emotions and case manage the process. As you can imagine, hot emotions often side track clients, especially in the court process, causing legal fees to escalate exponentially.

A Parenting Coach will also work with the parties to resolve the issues related to the children. Not only does the Parenting Coach facilitate the negotiations around time with the kids, the Parenting Coach is an expert in the needs of children so can offer sound, practical advice about what the children need in a settlement.

A Financial Specialist will help you and your spouse collect the various financial documents needed and facilitates a discussion of the financial issues.

The hourly cost of the Parenting Coach, Financial Specialist and Divorce Coach is usually substantially less than the cost of lawyers and the costs are shared by the parties so there are big savings to you. Clearly, two lawyers are far more expensive than one coach or one Financial Specialist shared.

In the end, most Collaborative cases are substantially less costly than court cases. In my experience, they cost between $2,000 to $6,000 per client. The cost is dependent upon the time necessary to negotiate an agreement but by using coaches and a financial specialist to do much of the negotiations, keeping the case out of the lawyers’ offices, you really minimize the costs.

Furthermore, by keeping the case out of court, costs are kept to a minimum. Court is very expensive due to the many forms and steps in the process, and the cost of waiting for the judge to hear your case. I have waited all day for a judge to hear my case and not been reached, costing my client thousands of dollars in fees. 

Upon the conclusion of the Collaborative process, a separation agreement is reviewed and signed by the parties with their lawyers. Over 85% of cases result in a full settlement of all the issues. It works well and is very cost effective compared to Court.  

I firmly believe that the Collaborative process is the best way of resolving divorce and separation issues. In fact, I no longer accept cases that are court-bound. Our four associate lawyers still take on court cases but after 21 years of litigating family law cases, I know clients are better off using the Collaborative process. So, no court for me or my clients! 

Divorce: The final step after an agreement has been signed is to complete the divorce. This is achieved by completing and filing some paperwork at Court. It takes about six months to get the divorce judgment back from the court and the cost for uncontested divorces in Simcoe County is $1,250.00 plus sales taxes. Our fee includes the filing fees which are over $500.00 and all the disbursements etc.

Of course, these cost estimates are the existing costs at the time of writing this blog. They will vary over time.

Retainers: We always require a retainer which is a deposit of money into trust for future legal fees. Presently, our retainers are: Separation Agreement $1,200; Collaborative case $2,000; Court case $3,000; Uncontested Divorce $1,250. Each month you will be billed for our time and you have to replenish the retainer.

Why is it so costly? One client who had a sense of humour, an especially unhappy marriage and very bitter divorce shared with me his “analysis” of why divorces cost so much. He said “They’re worth it!” I like his attitude! 

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