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

Jackie Ramler is a financial specialist. She helps clients who are going through a separation or divorce resolve the financial issues. We have used her many times and find she does excellent work, saving our clients thousands of dollars in fees and helping them attain a resolution in a timely manner.

She is the owner of Divorce Choices Inc.

She also works with me and Sue Cook in our business called The Divorce Team. We teach financial specialists,  lawyers, parenting coaches and divorce coaches how to work together in the Collaborative Team Process.

Jackie is very good.

Here is my interview with her.

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The Toronto Star did a great article about clients wanting to cut the costs of divorce by staying out of court. I especially like the introduction:

"Alex Crookes knew he was in for a divorce with a difference the minute he walked into a lawyer's office with his ex-wife, Lynne Maclennan.

The couple instinctively sat at opposite sides of the table, until one of their lawyers, trained in the relatively new concept of collaborative family law, set a more comfortable tone for the talks.

"The first thing the lawyer said was, `Sit next to each other,'" says Crookes, 37."

I can't say I actually insist that clients sit next to each other during four way meetings but I certainly do my  best to help them understand that they should be working from the same side of the table - figuratively speaking.

What I mean by that is that clients sometimes think that divorce has to be a battle. I try to help them realize that they actually share the problems with their spouse, everyone wants to resolve the issues and they can work together to find a resolution that works for both of them.

Court is a battle. Each side is supposed to show the strengths of their own position and the weakness of the other.  The judge is then asked to choose between the two sides or do his/her best to come up with a just resolution. Often neither party is happy with the results and the costs can be staggering.

In the  Collaborative process, the clients work together to find a mutually acceptable agreement. The power to make decisions stays with the clients instead being given to the judge.

The International Association of Collaborative Professionals has an excellent description of the Collaborative process.

I won't ask you to sit next to your spouse in the Collaborative process but I like the way this Toronto lawyer is thinking.

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"Doctor Must Support Abusive Husband" is the headline in the Globe and Mail newspaper, on September 23, 2009. I am sure many people were outraged at the judge who made this decision.

In reality, I would be outraged if I was the female doctor whose husband was convicted of assaulting me and now I  had to pay him $6,000.00 per month in spousal support. But, it is the right decision.

Let's look more closely at the facts and the law.

According to The Globe, the wife has an income of over $400,000 per year while the husband's income is around $45,000. Certainly, it appears he will suffer economically as a result of the separation and that's one factor the court must consider.

Also, the wife had signed an agreement in which she agreed to pay her husband $6,000.00 per month as spousal support. That's something else to be considered too.

The doctor did not yet prove that the agreement was signed under duress or she did not understand what she was signing or that it was unconscionable. She may prove this at trial but at this point in the proceedings, the agreement appears to be enforceable.

At the trial, the judge may decide that it the assault was a repudiation of the relationship rending spousal support inappropriate, but, frankly, I doubt that will happen. The husband received a suspended sentence for the assault suggesting it was not a horrendous assault. I am sure it was horrendous for the doctor but not so in comparison to other assaults.

The courts don't get into an examination of who was the "good guy" and who was the "bad guy" in a relationship. The law is very clear: section 15.2(5) of the Divorce Act says judges are not to consider any "misconduct" during the marriage when considering whether there should be spousal support.

You may disagree with the law and believe that the court should look into the behaviour of the husband and wife before determining spousal support or, for that matter, any other issue. Maybe you feel that "misconduct" should be considered when equalizing the property. What about when determining custody and access?

Well okay... but I would not want our judiciary having to make moral judgments in family law cases. It can get pretty complicated. People would use the court to seek revenge, further escalating the pain and conflict inherent to divorce.

Judges apply the law, they don't make it. If you want to change the law, talk to your Member of Parliament but don't blame the judges. They are just doing their job.

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In the Ottawa Divorce Blog, the author is critical of the Supreme Court of Canada's decision in Leskun v. Leskun suggesting the Court is allowing "fault" to creep back into whether someone should get spousal support. In that case, the wife claimed she was still unable to work 8 years after the marriage because she was still suffering from the emotional damage inflicted when she learned her husband of 20 years wanted a divorce so he could marry another woman.

I don't think Jeff has it right in his blog. The Court is not suggesting that someone can receive spousal support simply because of the wrong-doing of their spouse. The Court is looking at the impact of the wrong-doing and concluded that, in fact, the wife was unable to become economically self-sufficient as a result of her present state of health. I don't think it would matter if the cause of her inability was hearing her husband had an affair, or she was run over by a truck.

It's the impact of the event that rendered her unable to become self-sufficient.

I certainly agree with Jeff's suggestion that everyone should do their best to recover from their divorce, but I don't feel he is being fair when he characterizes Ms Leskun's state as being "self-inflicted". Let's give her a break. If learning her husband had an affair hit her like a truck plowing down the road full speed, rendering Ms. Leskun unable to become self-sufficient, she is entitled to spousal support in my books (and according to the Supreme Court of Canada too). 

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Comic book characters Archie and Veronica are getting married. In the article, "Do Archie and Veronica Need a Prenup," by Globe and Mail writer, Roma Luciw, she poses the question, "Will they get a prenuptial agreement?"

It's a good question.

A pre-nuptial agreement (also called a marriage contract or a cohabitation agreement) states what will happen should the couple separate. It settles issue such as the division of property in advance of any issues arising and often in a way that is different than a judge would do.

Veronica is the more wealthy of the two so she would be wise to have an agreement in place. In my opinion, family law in Ontario is unfair because if Veronica owns a home on the day of marriage that she and Archie move into as their "matrimonial home" and then they separate, Veronica will have to share the entire value with Archie. It won't matter that she had, for example, $100,000 of equity built up in the home when they got married. She has to share the whole value of the home with Archie. This is not the case with other assets, just the matrimonial home. I have never thought that was fair.

I can imagine that Veronica's father may be very skeptical of Archie's motives. He may accuse Archie of being a  "gold digger". For that reason, Archie may want to have a pre-nuptial put in place just to show that he is marrying Veronica because he loves her (and not just her money).

Pre-nuptial agreements are useful if you want to protect a particular assets such as a family business, or you own a home that you and your beloved intend to occupy. Sometimes older couples who marry get pressure from their adult children to enter into an agreement so they won't lose their "inheritance" to the new partner if Gramma and Grampa separate.

A co-habitation agreement is a good idea if you are planning on living together instead of marrying. Common law separations can be complicated since the law is so ambiguous as to the rights of each person upon a separation. An agreement in advance (when you both still love each other) is a good idea so you both know what will happen should you separate.

By the way... Luciw reports that the creators of Archie say there will be no pre-nuptial agreement. I guess everyone is just hoping Archie and Veronica live happily ever after.

I've heard that one before!

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