How Do Fathers (or Mothers) Get Custody of their Children?

There is a myth that fathers never get custody. This myth is based on the historic fact that most children traditionally were raised by mothers and that fathers were the bread-winners. As a result, in those days, it made sense that the courts assumed it was in the best interests of the children to be primarily in the care of the mother.

Now, many families have two bread-winners and two caregivers;  mom and dad share in both responsibilities. As a result, the courts in Ontario are more inclined to determine that an equal time sharing regime makes sense for families in which both parents are equally involved in child care.

If you are a father and want to have custody of your child, you need to prove that it is in the child's best interests to be in your care. A strong argument for you having custody is if you can prove that historically you have been the primary caregiver and that you are willing and able to continue to provide the care your child deserves. 

Custody court battles are nasty, take a lot of time to resolve and cost thousands of dollars. Often it is the children who suffer most from a court battle. We prefer to help our clients negotiate a settlement using a process called Collaborative Practice. This is a way to resolve your parenting issues and other separation-related issues with the help of professionals so as to minimize the impact on your children and keep costs down. 

We help both fathers and mothers resolve parenting issues every day. If you would like a consultation with one our lawyers, please click here. We can help. 

Wiping Away Credit Debt After a Financially Messy Divorce

 

The total amount of revolving debt in Canada is more than $600 billion, and that doesn't include secured debt, like mortgages and car loans. When you carry a chunk of this debt on top of the expenses and difficulty of a divorce, you're paying interest every month just for the privilege of continuing to borrow the money. Make your financial footing more solid by evaluating your debt and taking concrete steps to get rid of it.

Manage Your Credit Report

When you have a lot of debt after a divorce, your credit report is a bit of a mess. It may be littered with late payments, collection accounts and credit cards dangerously close to their limits. Get a copy of your credit report for free each year from Experian, Equifax and TransUnion through AnnualCreditReport.com. Not only will this give you a full picture of what you owe, but you can also see if your accounts are being reported correctly. Disputing errors through the credit bureaus that provided the erroneous reports can help boost your credit score.

One of the main steps to restore your life and start over is to get out of debt and improve your credit score. This not only makes borrowing in the future less expensive, but can also help you get lower auto insurance rates and have an easier time renting a home. For newly separated or divorced people suffering from bad debt, renting an apartment or buying a car doesn't have to be as difficult as you might think. For example, former buy-here-pay-here dealerships offer auto loans with various repayment plans. Making payments on time will slowly but surely improve your credit score.

Create a Detailed Budget

Once you know what your debts are, it's time to make a plan for how to make consistent payments on them every month. Take full stock of the money coming in each month, then create a budget to plan how you will spend it. Start with necessary payments, like your housing, utilities and all of your debt payments. Then allocate any remaining money to variable expenses (gas, groceries) and luxuries (new clothes, entertainment and vacations). When you have a plan, you won't need to keep going into more debt each month to make ends meet.

Change Your Lifestyle Perception

Your lifestyle may drastically change after you're divorced, so changing your perception and expectations may be a necessary part of getting out of debt. If you embrace a frugal lifestyle and enjoy the good you do have in your life, it's a lot easier to forgo those things you see others getting that you can't afford. In the book "Living Well with Bad Credit," the authors encourage you to realize that the good life is subjective, and you can be perfectly happy even when your credit is horrible.

Use Extra Money to Pay off Debt

When you end up with unexpected money, don't spend it on things you don't actually need. Instead, pay off debt to lower your balances and reduce your monthly interest charges. For example, CBS reports that the average tax refund is $3,000. Putting this toward the typical credit card bill will save you over $500 on interest in the next year. If you get a raise at work, put that extra income toward debt repayment rather than expanding your lifestyle. You can also scrape together extra money by clipping coupons to save on grocery bills or foregoing usual luxuries like your morning latte. Putting all of this money toward debt repayment will help you get out of debt sooner.

Conclusion

Most people who go through divorce have a difficult time adjusting to the new financial reality. It's normal. The good news is that most can recover from it. The key is to be focussed on getting rid of your debt and living within your means. Winning the lottery is also helpful. 

The "Roll" of RRSP's in Your Separation and Divorce

Registered Retirement Savings Plans are the main savings vehicle for many Canadians, especially those who don't have a pension through their employment. As a result, upon separation and divorce, RRSP's are part of the property settlement. 

Our guest blog this week is  by Sandra Ramos, a well known financial advisor in Barrie, Ontario.  She has great advice about how to deal with RRSP's during your separation and divorce. 

For most couples, separating your assets can be the most challenging event of your separation, not only from the standpoint of “equalization” but also from a “taxation point of view”. RRSP’s, Registered Retirement Savings Plans add complexity to the equalization process due to their inherent tax implications. If you remove funds from your RRSP you will pay tax on the withdrawal and the amount will be added to your income in the year of the withdrawal. You can roll your RRSP’s to your spouse during the equalization process without immediate taxation, however, should your spouse use those assets to pay for legal fees or to get back on their feet financially, there will be taxes when withdrawn. This is an element that is often times overlooked during negotiations simply because the current dollar value is the only information being considered and not the net after tax effect. It is important if you are going to receive some part of your settlement in the form of an RRSP roll over from your spouse, that you tax the potential future tax implications into consideration.

Example if your spouse has $ 10,000 in an RRSP that he or she would like to roll to you as equalization payment for other property; you must adjust for taxes. If your personal marginal tax rate annually is 20% this RRSP asset should only be viewed as $ 8,000 after tax. Receiving assets inside an RRSP can be very beneficial to the recipient when handled and valuated properly, but it should not be viewed in the same way as cash or other property.

The involvement of a Financial Advisor or Accountant at this point in the equalization process is very important to ensure there is a thorough understanding of the taxation issues for your unique scenario. The collaborative process involves all of these elements for you, to ensure you understand the implications of the decisions you are making both from an asset valuation and forward taxation point of view.

I would love to hear some of your stories and thoughts regarding this topic and if you are interested in learning more about how I can assist you, please do not hesitate to give me a call at 1-866-949-1027 ext 235 and visit my website at www.sandraramos.ca.

Sandra Ramos, CFP

Senior Executive Consultant

Investors Group Financial Services Inc.

138 Commerce Park Drive

Barrie, Ontario  L4N 8W8


Divorce - What is the First Step?

Simage of couple pulling rings aparteparation and Divorce: These are ugly words. They conjure up feelings of pain, disappointment, fear, and uncertainty. What is the first step? How do I get through this? 

I remember when I went through my own divorce (yes, divorce lawyers sometimes get divorced too) how stressful it was for me. I feared the impact it would have on my relationship with my children and wasn't sure what the financial outcome would be. I felt embarrassed and could hardly focus on anything.  I just wanted to get through it  with the least amount of pain as possible. 

It does not matter whether you were married or lived common law, the first step is to find a lawyer you feel comfortable with and who is committed to resolving the outstanding issues in a cost-effective and timely manner. Simply put, you need to find a Collaboratively trained lawyer. 

Going to Family Court just makes things worse. Collaborative Practice keeps you out of court. 

Collaborative Practice is a way to get through your divorce that minimizes the pain, both financially  and emotionally. It is a problem solving process. You are given the support you need to make the best decisions for your family. 

All of the lawyers at Galbraith Family Law are trained in this process and are committed to helping you get your issues resolved quickly, effectively and with the least amount of pain possible. We give you the information and support you need to find your way to a resolution. 

For more information about the process, here is an article about it. 

Other Collaboratively trained professionals are profiled at www.DivorceHappens.ca and www.CollaborativePracticeSimcoeCounty.com

Costly Kids - Worth Every Dime

Below is a fantastic graphic about the cost of kids. I have four of them and can say, without a doubt they are expensive and worth every dime. They truly enrich my life. 

 

Costly Kids
Created by: EarlyChildhoodEducation

Forensic Accounting and Divorce

image of couple pulling rings apartThe role of a Forensic Accountant in a divorce is not well known. Erin Palmer offers great insights into this valuable professional who can help uncover hidden assets or income of a deceptive spouse. Here is Erin's blog: 

All’s Fair in Love and War, Except in Divorce – That’s What Forensic Accountants Are For

You aren’t alone. Many couples considering divorce find themselves in a predicament they never expected to be in and begin to look at each other in a new light. Here’s one scenario: One spouse may be shuffling money around and squirreling it away. The other is offered a piteous settlement and is none the wiser, but instinctively feel that the numbers just don’t add up. Here’s a second scenario: One spouse offers the other a blunt settlement with no questions asked, without a way to alter the settlement later on. Both scenarios should be considered cautionary tales. If your intuition is telling you something isn’t adding up, or your divorce lawyer recommends getting a forensic accountant, you should listen. Large corporations aren’t the only ones guilty of moving and hiding assets these days.

Three Things You Should Know About Forensic Accountants

1.       Why You Need a Forensic Accountant

It’s such a simple question to ask, “Why?”, but the answers can vary greatly. An article posted, April 30, 2012, on the Wall Street Journal’s website gave staggering data from several studies…

·         31 percent of U.S. adults who join their earnings and savings with their spouse or significant other admitted they have been deceptive about money at times. – National Endowment for Financial Education

·         58 percent from the same study (mentioned above) admitted they hid cash, as well. – National Endowment for Financial Education

The Wall Street Journal article goes on to report something else of significance – technology is playing a larger role in discovering deceptive financial practices between couples.

·         During a 2010 survey, members of the American Academy of Matrimonial Lawyers were asked if in the past five years had they had seen an increase of information and evidence used that was gathered from social media/social networking websites (think Facebook, LinkedIn, Twitter). Can you believe that 81 percent of the members said yes?

·         Two years later the members were polled again with the same question and the number of lawyers answering yes climbed to 92 percent. That’s an increase of 11 percent in just two years.

2. What Forensic Accountants Look For

Forensic Accountants are highly trained professionals who may also possess a CPA license as a result of passing the Uniform CPA Exam. These financial professionals have received specialized training in locating financial information through research and technology. When a forensic accountant is assisting with a divorce, one of the first things they review are tax returns belonging to both parties. Believe it or not, a forensic accountant can learn a lot from a tax return such as real estate information, investments, partnerships and businesses, trusts and estates, and much more. Once they’ve reviewed this information, the forensic accountant can branch out and continue digging.

Other items forensic accountants look for are things like unreported retirement funds and decreased earnings being reported by the main bread winner. An unreported retirement fund is a deceptive practice. And decreased earnings may not be a red flag to most lay people, but to a trained professional this could lead to much more. They will look to see when the earnings first started to decrease and study as to whether they can put a tangible reason to the decrease or if it looks like money is being funneled in another direction.

Another task a forensic accountant may perform requires the use of specialized computer programs that can sift through all the data that is currently living on a hard drive or had once been there. Yes, even if data has been deleted from a drive, the information remains deep within the heart of the hard drive and these professionals have the ability to try and retrieve it.

The work of a forensic accountant isn’t always structured around finding a deceptive spouse. They also help lawyers create financial statements based upon their review of the couple’s assets. This has proven to be very helpful in creating an accurate financial picture that presiding judges can utilize to make his or her decision on the separation of assets.

3. If You Want It Done Right (Legally), Hire a Professional

When it comes to divorce, emotions can run high. And it’s natural to have your anger and frustration build. However, trying to take matters into your own hands is not advisable. If you have decided to Google or follow your spouse’s trail online and started finding information pertinent to your case, discuss this with your lawyer first.

The Wall Street Journal article “Why Hiding Money From Your Spouse Has Gotten a Lot Harder” mentions the grey area between following your soon-to-be former spouse’s online history versus putting a key logger on their computer. A key logger can be a piece of hardware or software installed on a computer that records the actions of whomever is using it.

If you are considering going rogue and ‘bug’ your spouse’s computer, it is very important that you talk to your lawyer first. More than likely they will advise against it and the information obtained may not be admissible during your legal proceedings. Not to mention, you could end up in legal trouble of your own.

If you are considering divorce and want to allocate your assets properly, or suspect your family’s assets have been mis-handled or-represented by your spouse, a forensic accountant will be your best line of defense next to your attorney. There are various reasons why you would hire this type of legal representation but for those who may not know the benefits to hiring a Forensic accountant or  how to hire the right CPA for your situation, it is highly suggested you research or interview multiple professionals in search for the best fit for your situation.

Erin Palmer writes about CPA exam review and CPA continuing professional education for Bisk Education.

Divorce, Matrimonial Home and Mortgages: Sage Advice And Good Options

image of couple fighting over houseDarren Robinson is a mortgage broker in Barrie. He helps many clients who are going through a divorce refinance their home and get on their feet. He has some interesting and suprising advice. Darren is with Dominion Lending in Barrie. He wrote the following excellent blog: 

How does separation or divorce impact my home & mortgage?

On the unfortunate occasion when a marriage is dissolved, there are a number of financial questions that need to be answered.  The most important is what to do with the matrimonial home?  The two easy answers are; 1) sell it, divide the equity & move on or 2) one party buys out the other party and stays in the home.

While option one might sound like the simplest option, if the couple have kids it is usually better for them to keep some type of consistency in their lives.  Staying in the home will allow them to remain at the same school & keep their neighbourhood friends which can be very comforting.  Also, option one might not be financially possible due to mortgage penalties or a weak real estate market.

In order for option two to work the spouse will have to ensure that they will be able to afford to stay in the house on one salary.  The current lender will need to re-qualify the applicant on their own before they will allow the ex-spouse to be removed from title and released from the mortgage (it is extremely important that both these steps are taken because it is possible for someone to be removed from title but still remain responsible for the payments if the mortgage is in arrears).  This transaction normally doesn’t involve any lender penalties but a real estate lawyer’s service will be needed to transfer the title.

If, as part of the separation agreement, the spouse remaining in the home is required to make a lump-sum payment to the other, they may need to refinance their mortgage to enable equity to be taken out of the property.  This may or may not involve lender penalties (check your lender’s policies).  In many cases the lender will allow you to leave your current mortgage intact but add refinance funds to the original balance in a transaction called a blend & extend, avoiding any penalties.  There are lending rules in place in Canada that will only allow a home owner to refinance their mortgage to 85% of the home’s value.  This can be very limiting to couples who have less than 15% equity in their home, so CMHC (Canadian Mortgage & Housing Corporation) will allow, on a case-by-case basis, the transaction to go through as a purchase to 95% of the home’s value.  This can then free up most of the capital the couple has accumulated in the house for a more simple division of assets.

If the spouse staying in the house does not qualify for a new mortgage on their own there is the possibility to add a co-signer/co-borrower to the mortgage.  This applicant is normally a parent or sibling who has good credit/income and is willing to take over payments on the home if the loan goes into default.  An alternative option is to leave the ex-spouse on title but I highly recommend against this because no matter how amicable your relationship is now you never know how your relationship will evolve in the future.

Keep in mind that most lenders require a finalized separation agreement be in place before they will consider a new approval.  They will need complete visibility/disclosure of any alimony or child support payments, as they will need to be calculated when qualifying the client for a new mortgage.

When facing separation or divorce it is always best to sit down with a mortgage broker for a free consultation.  They will be able to outline viable options and work through different scenarios throughout the separation process to ensure you’re making the best financial decision available to you.

If you live in the Barrie, Ontario area I’d be happy to set an appointment at my office (62 Commerce Park Drive, Unit N) to discuss your options and detail a plan to move forward.  You can call me at (705) 737-6161, (888) 737-6162 or by email drobinson@domininionlending.ca.  Alternatively you can find more information about mortgage financing at www.darrenrobinson.ca.

Fairness in Your Divorce: Court Compared to Collaborative

The other day the judge in Family Court said "We can't consider "fairness" when deciding cases." I was shocked but then I realized that she is right. Family Court is about rules and process. Like cases are to be treated alike according to the law. The law is a set of principles that the judge uses to prescribe the rights and responsibilities of the parties. Judges have a lot of discretion when applying the law to the facts so we speak in terms of the likely "range of outcome". Fairness in family court means applying the rules and principles impartially to each party. The resolution is not necessarily seen as "fair" to both parties. In fact, neither party may feel it is "fair".

One of my clients, referring to Family Court, said "It's not a justice system, it's 'just a system'." How true. Family court is a system intended to resolve disputes. That's all.

This is not in any way to impugn our Family Court judges. We have brilliant judges who care about the parties before them. It's just that the court system is an adversarial system. It isn't intended to meet the core concerns of each party.

Of course, in a sense it is "fair" to impartially apply the same rules and principles to all parties to resolve their disputes. That's what courts do.  

What most people want is a resolution that takes into consideration their core concerns: their underlying needs, desires, concerns and fears. Courts are not allowed to take into consideration the core concerns or interests of the parties. Courts take into consideration only those facts that are logically related to the applicable principles of the law. Judges' discretion is limited by the law.

Collaborative Practice is a process that involves interest-based negotiations. The professionals help the parties discover their core concerns. We then help the parties brainstorm solutions that take into consideration both party's core concerns. It's hard work but in the end the parties have a "win-win" resolution: a resolution they both feel is "fair". At Galbraith Family Law, all of our lawyers are trained to help clients using Collaborative Practice. We also go to Family Court but if we can help you reach a win-win resolution using Collaborative Practice, we do it.

Surviving Holidays Without Your Children

Suchada, also known as Mama Eve, did an excellent blog  about what to do when you don't have your children for the holidays, especially for the first time.

She is honest, insightful and offers hope about how to cope without your children. 

Divorce sucks. You have a choice how you respond to its challenges. You can make it worse or you can take Mama Eve's good advice and make the most out of a difficult situation. 

In time, it gets better. Truly... it does. Hang in there. 

Here is her blog

 Acouple of days ago my children left on their first trip without me.

 

My husband and I separated earlier this year (I will write more about this later, and yes, it’s one of the reasons I didn’t keep up with my blog for a while). While much of this has been difficult, nothing has been harder for either of us than being away from the kids for the holidays. I got them for Thanksgiving, and he took them to see his family in Ohio for Christmas.

It sucks.

However, I try to make the best of even the worst situations, so here goes: my top 5 ways to survive being away from your kids for the holidays.

1. Stay busy

There was no question that when my boys got tickets to Ohio, I was getting a ticket to somewhere. I didn’t want to stay at home by myself and be lonely. So I’m flying to Florida to see my parents, and I’ve packed my schedule full of activities I love to do. If I’m bored I know I will wallow in my loneliness and guilt, so my goal is to not let it happen. And on the positive side, it’s been more than three years since I’ve had time to myself anyway, so I’m going to take full advantage of it with things that aren’t easy to coordinate with two little ones – like scuba diving and sailing and some nighttime fun.

2. Be flexible

While I would love to get on the phone and Skype with my little ones during the times it’s convenient for me (when I wake up, before I have dinner, a quick minute between errands), I have to remember they’re busy with their dad and his family. They have their days filled up with relatives who haven’t seen them in years, and grandparents that want to play with them, and sightseeing trips to all kinds of exciting destinations. If I want to talk to them and see them, I need to remember to be ready for when they have a moment, and not count on them to squeeze in regular appointments during a special trip like this.

3. Make memories

Since I know it isn’t easy to coordinate regular phone calls and Skype sessions, I decided to port myself to where they are, on demand. I made video recordings of me reading a stack of their favorite books, and then posted them to YouTube, and also a video just to tell them how much I love them and miss them. It’s not the same as interacting with them, but at least if they get lonely they can see my face and hear my voice reading something familiar anytime, anywhere (thanks to laptops and smartphones). Another benefit is it allows them to keep up part of their bedtime routine in an otherwise unfamiliar environment.

4. Remember it’s not all about you

This was the hardest thing for me as this situation unfolded, but once I accepted it, it’s been the most freeing. My kiddos are having a big adventure with a capable parent, surrounded by a big family that adores them and is thrilled to see them for the holidays. I miss them terribly, and I want to cuddle with them and smother them with kisses, but they don’t need to know how painful this is for me. What’s going on between their dad and me is an adult problem, and my boys don’t need to feel the weight of it. While I would do anything to be with them, I can’t change it, and moping and reminding everyone of how sad I am doesn’t make it a better holiday for anyone (including me).

5. Find joy in what’s around you

While my ideal situation would be to spend the holidays with my boys, I can’t pretend there aren’t a lot of positives to my Christmas plans. I will be with my parents, and my sister and her family, in a beautiful location with many friends. I will be able to go on adventures that aren’t easy to coordinate with two little ones, and I have friends and family who love me, and are thinking of me and praying for me. I know not everyone is so fortunate when they’re away from their children, but I believe something good can be found in even the dreariest circumstances. Even if it’s rock bottom, it means better days are coming.

I hope you all have restful holidays with people that love you, and I will see you again in the new year. Merry Christmas and lots of love!

 

 

Why Do I Need To Do A Sworn Financial Statement?

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. 

 

Family Court versus Collaborative Practice: You Choose

Ontario's Chief Justice Warren Winkler advocates for changes to the family court system to make it more efficient, less adversarial and more cost-effective, according to The Globe and Mail. He suggests that litigants should be diverted to mediation or an alternative process to the traditional adversarial process. While I admire the Chief Justice's ambition, frankly, I believe the family court is here to stay. There will always be certain people who just want a piece of flesh torn from the back of their ex spouse and certain lawyers willing to do it. The Family Court will always be a messy, bloody circus. 

We already have an efficient, effective process available to separating couples and it's called Collaborative Team Practice. We have many trained professionals willing and able to help separating couples resolve their issues in a mature, reasonable and private process yet our family courts continue to be overflowing with litigants, hell bent on revenge.

Why?  I think there is some sort of primal instinct in us all that just loves a good fight. Otherwise, why would sports like NHL hockey and professional boxing thrive?  

If you go to a traditional lawyer who loves to do battle, you will be lead astray and end up in family court, paying thousands of dollars to avenge yourself. In the end, you will feel raped and abused. You won't feel good about it. Nobody does.

I applaud Chief Justice Winkler desire to educate the public about alternatives to the toe-to-toe battle of family court. I believe if more people knew about Collaborative Team Practice, it would become mainstream.

There may be a primal instinct to fight but I also believe that deep down most people are reasonable and just want to get through their separation quickly, fairly and cost-effectively. Given the opportunity, they will do the right thing.

To put it another way, given a choice between the brawling, head-injury prone style of NHL hockey versus fast-paced, skill-oriented Olympic hockey, most North Americans will choose the Olympic style hockey every time, hands down. 

If you are getting a divorce, you decide. Court versus Collaborative. Are you a brawler or a reasonable person who just needs some help to get through tough times? 

Keeping Healthy Boundaries While Co-Parenting

Co-parenting after divorce is not easy. It's like walking a tight rope at first. 

You want to be cooperative and communicate well but on the other hand how close is too close with your ex spouse?

Karen Buscemi wrote a great blog in the Huffington Post about keeping boundaries with your ex spouse. Karen says there are five things you should not do:

1. Don't give your spouse that sexy look.

2. Don't hug your ex spouse.

3. Don't give your spouse too much attention at social events.

4. Don't stay too chummy with your ex spouse's family.

5. Don't use your ex spouse's friends.

There are two sides of the coin. I fully agree with Karen but would add the following:

1. Don't give your ex spouse that dirty look like you are disgusted by them. How would you feel if you saw one of your parents give the other parent that kind of look?

2. Don't push your ex spouse away. If you need a hand, ask for help. If your ex needs a hand, help out. Treat your ex like a good neighbour.

3. Don't pretend that your ex spouse does not even exist when at social events. Occasional eye contact is polite. Maybe you could even say "hi" .  It wouldn't kill you.

4. You don't have to be enemies with your ex spouse's family. You can still be friends. There are a lifetime of events you will share so reach out and try to break the ice. It is awkward but worth some effort to make things comfortable for everyone, especially your children.

5. Your friends can be your ex spouse's friends. It isn't fair to ask them to keep secrets so remember that what you say or do may get back to your ex spouse. If you have something to hide, be careful. But, hey, who has something to hide?

Striking the right balance is a real challenge. Working with a Family Coach or Divorce Coach (both are therapists with special training to help clients move through the emotional stages of divorce) really helps. 

Walking on a tight rope is challenging at first. You might fall from time to time. Your spouse might fall too. Be patient. Put in supports to catch you when you fall such as a Family Coach. Raising kids is like being in a circus. Co-parenting is just another act! You can do it... one step at a time! 

Settlement Meetings: Getting Your Divorce Resolved

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.

How Can We Help Our Children Emotionally Get Through Our Divorce?

Every parent going through a divorce wants to minimize the emotional pain and struggle for their children. The challenge is recognizing that your child  is suffering and then knowing what to do. Suzy Yehl Marta, an expert on children going through divorce, offers some advice.

Suzy, a divorced mother of three boys, gave up the security of her three jobs to do something she knew in her heart had to be done for our youth who were grieving a life-changing loss.  She established Rainbows, now the world’s largest nonprofit organization dedicated solely to helping families cope with loss. Over the last 27 years, Rainbows has served nearly 2.5 million youth throughout Canada, the United States and 17 countries. Suzy has conducted 100+ media interviews and her book, Healing the Hurt, Restoring the Hope, was published to help guide youth through times of divorce, death or crisis. For more information about Rainbows go to their Canadian website www.Rainbows.ca or the US site www.Rainbows.org

Suzy has answered some questions about how to support your children through your divorce. 

1. If a child’s performance at school begins to suffer, how can a parent best deal with this? How can it be prevented in the first place?

The school is a great resource for parents and too many are embarrassed to reach out and ask for help. Discussing the divorce with the child’s classroom teacher and school counselor will help create a safety net when a parent is not around. As a result, parents will be informed on how their child is doing academically and socially. Undoubtedly, your child will be hurting from the family changes and it will show up in school, but over time and with support, the child will incorporate the changes into their life. It is extremely helpful if kids have structured opportunities to talk with other kids who are experiencing the same changes in their families. A program like Rainbows offers support groups for kids in their communities at no cost to the family. 

2.  What are the main behavioral issues children going through a divorce may exhibit? How can these be identified quickly and be dealt with?

Denial, anger, confusion and fear are the main causes of behavioral issues. Each child has a different story and relationship with divorce and we can’t assume that each child will respond in a similar pattern. Behavioral issues can range from drop in grades, being alone more often, or withdrawing from friends, sports and activities that they were involved in earlier. Some kids do not want to sleep alone, they are clingy or their appetite might change. Teens and young adults with built-up grief might turn to drugs and alcohol to temporarily forget the reality of the divorce.  If these changes become extreme or long lasting, the parent is wise to seek out a counselor who understands grief and the impact of divorce on kids A parent must take the time to work through their own grief, but also make sure that their children have a program to turn to like Rainbows, where support and love is still given. Compassion and willingness to make time for a child are the two most critical elements of helping a grieving child. The divorce of one’s parents is woven into each child’s personal history. While the divorce may be the best decision for the health of the family, it takes a long time for the children to recover. Parents need to have patience and understand that divorce impacts their children twice as much as their mom and dad. When the divorce takes place, not only does one parent move out, but both parents change and often remarry which creates even more change for the kids.

3. Other insights/advice on the subject?

Each parent has the power to add to their children’s lives and can help them develop into the best adults possible. As a parent, no matter what the situation is, it is critical to be dependable; children will begin to feel comfortable enough to talk to a parent about the most important decisions. Life will never be perfect and there many things that parents can’t predict or control, but that does not mean that a parent cannot instill a wonderful life for their child. Spending quiet time with each child every day will continue to make the relationship stronger. The parent should listen without judgment, letting the child feel the care

4.  How can a parent help his/her child’s best friend during a divorce?

The best way to help a child’s best friend is through compassion for the family. All too often, divorcing parents and their kids are shunned. Reaching out to the parents and offering assistance helps them realize they are not alone. Also, inviting the little friend over to spend time with your child and family from time to time can give the parents alone time to process their own grief, while taking stress away from the child. If the relationship with the child is close, asking how they are doing or setting time aside to listen is appropriate. What the child usually needs is the continued friendship of your son or daughter, a fun place to hang out, and perhaps an adult they can trust and turn to if the need arises.

Thanks so much to Suzy for her insight and thoughts. I fully support the work of Rainbows and in fact I am presently serving on the Board of Directors of Rainbows Canada. All children whose children are divorcing can benefit from Rainbows.

 

Is Your Divorce Driving You Crazy?

Are you going through a divorce? Do you sometimes feeling like you are losing your mind? Maybe you can't concentrate or you are constantly feeling like you are about to cry? Maybe you are drinking too much? Or working too hard? Or shopping too much? Maybe you have been willing to try anything to cope and now you worry you might have a problem... maybe even an addiction.

I remember when I went through my own divorce I felt all alone and  my whole world had been turned upside down. I was scared and sad and I am a divorce lawyer! I remember meeting with clients and struggling to keep myself from exploding in tears. To say the least, it was a tremendously stressful time. I thought I was going crazy.

It is normal to resort to unhealthy coping techniques when going through a divorce. Almost everyone does it at least once so don't beat yourself up. When you drink too much or shop too much or do some other behavior, it distracts you from the pain of your divorce. Nobody can blame you for slipping off the wagon once in a while. When it becomes an addiction, you have a bigger problem though. Either way, you need help and you need to develop healthy coping techniques.

If you fear that you have a addiction problem, Robert L. Mues has put together a list of links to 26 different assessment tools in his recent blog. Check it out! He lists assessment tools for depression, alcoholism, drug abuse, compulsive shopping and 22 other issues. They are all available on the internet and are a good start to dealing with any issues you might have in your life. Get professional help if you feel you may have an addiction. You can't deal with it alone. Start with your family doctor. You can't conquer addictions alone. Alcoholics Anonymous is classic example. They use peer support (meetings) and the buddy system to support those who want to kick their addiction. 

Maybe you don't have an addiction and you just are struggling through the normal emotions of your divorce. It's a difficult time for anyone.  We recommend to all of our clients they work with a Divorce Coach. It is normal to grieve the end of your marriage and a Divorce Coach will help you work through the normal emotions inherent to your divorce faster, so you can get on with your life.

Lawyers are not trained to help you work through the emotional journey. We want you to get the support you need so you can get through the emotional journey more quickly and efficiently. 

Your Divorce Coach will help you find healthy coping techniques that will work for you. Maybe it's getting exercise, eating good food, searching out support from friends and family, reading inspiring books, journaling or some other technique. Your Divorce Coach will give you ideas, homework and help you move though the emotional stages of divorce so you can get on with your life faster.

A Divorce Coach is not just if you are suffering from mental illness. That's a therapist. A Divorce
Coach is for anyone going through a divorce who is human and experiences emotions. Hmmmm Does that fit you? 

From a lawyer's point of view, I want all my clients to work with a Divorce Coach so that the emotions inherent to your divorce won't sidetrack the negotiations. I want you to have the best chance of negotiating an excellent settlement.

Your Divorce Coach will teach you the stages of divorce, ways to close the door on the past, how to cope with the transition, ways of communicating effectively with your spouse and help you look forward to a new life.

The bottom line: I have never had a client say they regret the money or time they spent with their Divorce Coach. Everyone has thanked me for the recommendation. Now, just take a deep breath and do it.

Scheduling Events When Divorced

CalendarHave you been unaware of an upcoming school event (like the Christmas concert) or an extracurricular event because your spouse forgot to tell you? Isn't it frustrating? And disappointing? It's also embarrassing when you drop the ball and forget to pass on important information.

Scheduling events, holidays and other activities for children can be difficult for any family, but the challenge is even greater for divorced parents. Often parents who have separated or divorced have difficulty communicating with each other at the best of times. Living in separate homes can make it even worse.  But you know that already if you're divorced. So what's the answer?

You need a system.

For many years, I have encouraged clients whose separation is fresh and raw to use a communication book. One of the parents purchases a blank book which is used to discuss any proposed changes to the access schedule, illnesses of the children, milestones, accomplishments, discipline problems and upcoming events in the children's lives. I encourage the parents to decorate the book with photos of the children on the outside of the book (to remind the parents to stay focused on their children's best interests) and to plan on giving the book to their children when they are adults (to encourage the parents to treat each other respectfully and politely in the book since their children will read it one day).

A high tech modern version of the communication book is Our Family Wizard. This is an on-line  calendar and communication tool available through the Internet. It is amazing. You can communicate upcoming changes to the schedule, health concerns, financial issues and any other issues related to your children through your own private website set up for this purpose. Older children can even be given access to the site as can any other third parties agreed to by you and your spouse (mediator, parenting coach, lawyers, grand parents). The cost is $99.00 per parent per year. They even have "scholarships" to reduce or eliminate the costs for deserving families. Third party access is free. Check out Our Family Wizard.

A free option is Google Calendar. It does not have all the bells and whistles of "Our Family Wizard" because it isn't designed for separated families, but it is free. A calendar is set up over the Internet with access restricted to you and your spouse or third parties agreeable to the parents. It's private and available wherever you can access the Internet. You can post upcoming events on the calendar such as the next hockey tournament or dance recital so everyone knows about it in advance.

Ideally, its best if you can communicate openly with one another via meetings, telephone calls or emails but often this is impossible especially immediately after the separation. The emotions are too hot for direct communication. So, try some other system.

Of course, a system works only if you work the system. Even if your spouse doesn't keep you informed or is unreliable, just take the high road, and do it anyway. Some of us are planners and some of us aren't planners. Such is life. Do it anyway.  

Whether you use the old fashioned communication book, Our Family Wizard, Google Calendar, emails, meetings or phone calls, find a way to communicate respectfully and in a timely manner. If you don't make an effort, your children will suffer. Your children deserve parents who will put aside their own personal feelings toward each other and find a way to communicate with each other, for the children's sake... and you don't want to miss another Christmas concert!

Ten Reasons a Pre-Nuptial Agreement May Be Unenforceable

Dick Price, in his recent blog, lists ten reasons why a pre-nuptial agreement might not be enforceable. He quotes Stephen Worrall from his blog. An "unenforceable" agreement means it's not worth the paper it's written on! The courts will not enforce the terms of the agreement. You should use the agreement to start a fire because it's otherwise useless.

Just tear it up!contract torn up

 Here is their list

* No written agreement
* Not properly executed
* You were pressured
* You didn't read it
* No time for consideration
* Invalid provisions
* False information
* Incomplete information
* No independent counsel
* Unconscionability

Although Dick and Stephen are writing about Texas and Georgia law, the same is true for Ontario.

The most important aspect of a marriage contract or pre-nuptial contract to ensure it is enforceable is that the negotiations are done properly. Courts like to respect contracts but only if both parties knew what they were doing when they signed the contract and did it voluntarily. A marriage contract or pre nuptial agreement or co-habitation agreement is really just a contract between two people so is treated the same way by the judges.

There should be full disclosure of all assets and income for both parties. In fact, I list the major assets and income in the agreement itself so there is no question that it was disclosed. If assets are not fully listed, it is possible that your spouse may say "If I knew my spouse was worth so much money, I would not have signed the agreement".

I also strongly recommend that both parties have independent legal advice. Otherwise, your spouse might try to wiggle out of the agreement on the basis of "I didn't understand  all that legal mumbo jumbo."

Ontario courts are certainly willing to respect pre-nuptial agreements regarding property issues. A typical agreement might say "property in my name is mine, property in my spouse's name is my spouse's property". These types of agreements are usually respected if the agreement has been entered into voluntarily and there has been full disclosure.

The courts are less willing to respect an agreement that results in the waiver of spousal support. Judges have a difficult time seeing one spouse impoverished when the other is wealthy. If they can find a way to set aside an agreement that waived spousal support, they often will do it.

The best advice about pre-nuptial agreements is talk to a lawyer and do it properly.

 

Interview with Financial Specialist Jackie Ramler

JacJackie Ramler photokie 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.

 

 

Q: What do you do as a Financial Specialist? 

As a Financial Specialist, I work with the couple as the neutral, and provide 6 distinct services.

1) I collect the financial information and documentation to prepare a report which can be used by the couple to review the Net Family Property Settlement as well as by the lawyers for the sworn financial statement.

2) I collect income information that can be reviewed to prepare Income Sharing options for income equalization.

3) I use that same information to run Child support figures as well as can prepare education projections for their children so they can negotiate how they will handle that future expense

4) I collect financial information from the family and prepare a report for the lawyers so that they can assist negotiations by both knowing what the primary financial issues for the couple are.

5) I educate the couple on what the various financial areas of the report are and how to read and understand the report. This gives them more confidence going into the negotiations.

6) I assist both individuals in better understanding how various settlement options will impact them now and in the future.

Q. Don’t lawyers perform the same role? Isn’t there overlap? 

Often it is the lawyers and their Assistants who collect this information and enter it into the court forms. Unfortunately, this does not catch misinformation or mistakes until the forms have been swapped by the sides. Instead of catching this misinformation early and in the spirit of it just being a simple mistake by working with me as the neutral, in the court documents it can be seen as being devious or deceitful. It then takes considerable effort and time to get the two sides to agree on the facts of the file. In this respect I believe I am more efficient with my time and the cost to the family, as there is just one document being prepared. Working with the couple during this information gathering process, we can often resolve small issues very quickly. As well, in the environment of working with a neutral, in my opinion it sets the stage for the clients to work together on the other aspects of the process.

Q. Do you offer advice to the clients? 

In reviewing the financial options available to the clients, I will make suggestions regarding the use of the various assets for equalization. When it comes to investments, I make no recommendations and give no advice- this is not appropriate in this environment. My financial advice is centered around budget and expenses, equalization options and helping them to better understand the financial components of their situation. Of course, I don't offer legal advice either. They have lawyers for that purpose.

Q. What about clients that really hate each other. Can you help them?

The challenging files are in cases of betrayal or infidelity. Ensuring that both parties have trust in the information being collected is paramount and I am particularly diligent in assisting the couple to ensure that both have confidence that all information is on the table. Because the Collaborative Practice agreement stresses full disclosure and transparency, if any of the professionals believe this is not being followed through with then the file is discontinued. I feel much more efficient working in the collaborative environment.

Q. What happens when clients get stuck? What do you do? 

Drawing on my mediation training, I have been finding it easier to assist clients in getting to agreement. In our first meeting, I address the issue of getting stuck and run through the options they have to find agreement. Often, when an issue presents itself and the couple begins to position, I go back to that initial conversation and they often quickly choose one of the options to find agreement. I really appreciate that for the big issues, especially when there is a difference of legal options, the couple can go forward with the four way meeting with their legal counsel. If we cannot negotiate an agreement, the clients can also use arbitration as part of the collaborative process.

Q. How do your costs compare to other processes?

I would venture that the costs to the family in working with one neutral Financial Specialist, in contrast to two lawyers and their Assistants, that I am more cost efficient. Not only from the amount of time and money spent but also in reducing the arguing over simple mistakes. In my opinion, the biggest advantage I have in the process is in laying the foundation of getting the clients to cooperate and work together early in the process so that they are better prepared to find agreement on bigger issues.

Thanks Jackie. We appreciate you taking the time to explain the role of the Financial Specialist.

More information about the process can be found on the website for the International Association of Collaborative Professionals