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

One of the most stressful aspects of separation and divorce is the uncertainty.You don't know how much money you will have, how much time you will have with your children and when the pain will go away. When I went through my own divorce, I hated the uncertainty and I am a divorce lawyer! 

The government of Ontario has launched a new website for the public that helps to address some aspects of the uncertainty. It is called www.YourOntarioLaw.com. It provides general legal information. One page that I especially like shows the inside of a courtroom. 

The problem with the website is that it is so focussed on the Court process. It has only one line about Collaborative Practice which is a way of resolving disputes without going to court. I guess this makes sense since the government is in the business of providing the Court system. It also has very little information about family law. 

Other excellent websites that provide information about the Collaborative Process are as follows: 

www.CollaborativePracticeSimcoeCounty.com This website provides information including professionals in Simcoe County who practice Collaboratively. It is a great resource. 

www.DivorceHappens.ca  This website provides more information about Collaborative  Practice, comparing the cost to the court process. It includes some great videos, and lists professionals I have helped train in the Collaborative Process throughout Ontario. 

www. OCLF.ca This website is our provincial umbrella organization. It has general information about Collaborative Practice. 

More Information...

Our firm website offers both information about the various process choices and lots of information about the law. We regularly receive positive feedback about what a great resource it is for the general public.  www.GalbraithFamilyLaw.com 

Of course, the best way to learn about your rights and obligations is to have a consultation. Our firm of experienced lawyers only practice family law. We offer one hour no-obligation consultations at a substantially reduced rate. You can ask all your questions and get answers particular to your case. Clients feel relieved of the uncertainty after a consultation.

Call 705 727-4242 or email JMcTighe@GalbraithFamilyLaw.com to book a consultation today.  

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Everyone hates having to do a sworn financial statement. This is a court form used in Ontario to list your assets, debts, income and expenses.  It is long, cumbersome and, frankly, a pain to complete. If your case is in Court in Ontario, you must complete the form. The Rules require you to complete it and the court clerks won't even open your court file without you filing a sworn financial statement.

If you aren't in court, I don't blame you if you don't want to complete it.

As your lawyer, we ask you to do a financial statement to ensure that you are protected. Yes, to protect you! We want you to fully disclose your assets and debts on the date of separation and date of marriage to ensure that your spouse cannot wiggle their wait out of the agreement, claiming that you were hiding assets. The Family Law Act allows the Court to "set aside" (which means not enforce) a separation agreement if there has not been full disclosure. 

The financial statement is an easy way to ensure that there has been full disclosure. It is like a checklist for lawyers. 

We ask your spouse to provide a sworn financial statement for the same reasons. It is an easy way to ensure we have a complete financial picture from him or her too.  

Once we have a complete financial picture, we can advise you as to the range of outcome should the matter proceed to court. In other words, we can give you legal advice. Without complete disclosure, we can't give you advice: we are just guessing.

Lawyers can get into big trouble with the Law Society if we give advice based on guesses or assumptions that turns out to be bad advice. Okay... you got me... we are also covering our own butt when we are asking for sworn financial statements. 

Disclosure is Essential

It isn't the financial statement itself that is important - what is important is that there is full disclosure. It's just that the financial statement makes it easy. 

A recent case before the Ontario Court of Appeal, known as Ward vs Ward clearly states that the exchange of financial statements is not necessary but full disclosure and knowledge of the other person's financial circumstances is essential. In that case, the parties exchanged some documentation with the assistance of the family's accountant. Financial statements were not completed but there was full disclosure and knowledge of each other’s financial circumstances.

The court describes the disclosure process in that case as follows:

“...neither party filed a financial statement, nor was one required under the terms of the process to which they agreed. While this did not diminish the obligation to disclose, in this case, the parties relied on the collaborative law process and other avenues of disclosure, including net family property statements and information from Mr. Wetstein [the family friend and accountant]”

In the end, the Ontario Court of Appeal determined that the husband's disclosure and the wife's knowledge of financial circumstances of the husband were sufficient even without sworn financial statements exchanged. The Court refused to set aside the agreement reached.  

Lawyers often use the financial statement because it is easy. It lists all of the categories of assets and debts so you don't miss disclosing something important. In our law firm, we insist on backup documentation to verify every value in the financial statement. It is the backup documentation that is important and fulfills the obligation to disclose. 

Collaborative Cases

In Collaborative cases, the Financial Specialist works with the clients to obtain a complete and accurate representation of the financial circumstances of the parties, usually without the use of a sworn financial statement. The Financial Specialist does a report and attaches the backup documentation for every value. Both lawyers ensure that their client has fully disclosed everything. Equally important, every lawyer must review what the other client has provided to ensure s/he has provided full disclosure. 

In Collaborative cases, as lawyers we always carefully review the Financial Specialist's report with our client to ensure it is accurate. Ultimately, the lawyers will ask for a sworn statement from each client stating that they have fully disclosed their assets, debts and income and that the Financial Specialist's report is accurate and complete. Alternatively, the lawyers will add wording to the separation agreement that states both parties are warranting that they have fully disclosed everything and that the Financial Specialist's report is accurate. Either way works. 

Full disclosure is essential. If you are trying to hide assets or income, we won't be your lawyer. We don't play those games. 

If you don't like having to provide full disclosure, we get it. You are not alone. Complain all you want. We have big shoulders. We want your agreement done right and made to last so just get it done. It’s for your own sake. 

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I interview people who went to Family Court and those who chose Collaborative Practice instead. Clearly, Collaborative Practice is the better way. I hope you enjoy the video.

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Do you want to save money and get through your divorce with as little pain (financial and emotional) as possible? Okay... dumb question... everybody does.

The challenge is "how?"

"Negotiate" is the simple answer but how do you negotiate with someone you don't trust, respect and can't communicate well with? Some lucky few are able to negotiate on their own but most people need some help.

Anne Shale wrote an excellent blog in the Ohio Family Law Blog that extols the benefits of the four way meeting in which both parties and lawyers meet to discuss, negotiate and resolve the issues.

Anne suggests the following benefits of negotiating through four way settlement meetings:

Savings of money: Litigation is expensive!  If all disputed issues are to be litigated or “tried” before the Court, there may be hourly fees to be paid for one (1), to two (2), to three (3) days of trial time.  Multiplying the hourly rate of your counsel ($150.00 to $250.00+ (per hour) [ed. in Ontario, the cost is between $250 to $500 per hour]  times one eight (8) hour day of trial reflects that you could easily incur attorney fees of $1200 to $2000 per day for the length of the trial.  If matters could be resolved or even partially resolved with a settlement conference, there will be a savings of money!

Savings of time: Time is “money” is often stated!  Domestic relations cases can be resolved over time by attorneys sending various settlement proposals back and forth by facsimile, scanning and email, or ordinary mail.  However, if the parties and their counsel elect to have a settlement conference, significant savings of time can be realized. The case might be “settled” or “resolved” quickly rather than over months of time.

Peace of mind: Going through a divorce or a dissolution is an emotional and sometimes “gut-wrenching” process.  Parties often experience physical symptoms of distress and anxiety in not knowing how the case is going to be “resolved”.  With resolution of disputed issues, the parties can experience peace of mind in knowing what is going to happen and how things are going to be resolved providing to each of them some “closure” without the discomfort,  angst, and expense of a trial.

Narrow the issues to be “tried” before the Court: Even if a settlement conference or conferences are not fruitful in resolving all issues, if some issues can be “settled” or “resolved” before the final hearing or trial, expenses of time and money can still be saved.  For example, if the parties commenced a settlement conference with six (6) disputed issues, to wit: (1) custody of the children, (2) parenting time schedule, (3) disposition of the marital residence, (4) division of retirement assets, (5) division of household goods and furnishings, (6) payment of marital liabilities, if any issues can be resolved at the time of the settlement conference, time and money can still be saved!

Even better than the simple four way meeting is the Collaborative Process. In this process, the parties and lawyers agree in writing that they won't go to Court and they will work together to find a resolution of the issues together. Four way meetings no longer are intended to simply narrow the issues: there is a commitment to resolving issues.

If an impasse occurs, there are many ways of overcoming it such as getting experts to offer opinions, or by asking the Family Coach to help resolve parenting issues or the Financial Specialist  to help resolve the financial issues. Ultimately, you can use arbitration (you jointly hire someone to act as the judge who will make an order which is enforceable like a court order).

Even if you do not choose the Collaborative Process and end up in court, you will be forced to negotiate. About 97% of family law cases are resolved by agreement. The problem with negotiations as part of the court process is that you are negotiating in a pressure cooker - the court house. It is much more costly as there are so many more procedural steps and delays, and you must proceed according to the court imposed time lines. Nobody likes the court process. It should be seen as the "last resort".  The Collaborative process is much better.

Settlement meetings are magical. When two people who really want to get a resolution sit together with their settlement-oriented lawyers, it is amazing. Resolution of even the most difficult issues can be achieved. There are often bumps in the road but that's normal. In the end, you will have an agreement that you helped craft and it will be achieved in a timely and cost-effective manner... even if you still don't respect, trust or communicate well with your ex.

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