The post Family Law Appeals in Ontario appeared first on Gene C. Colman Family Law Centre.
]]>In Ontario, family law appeals can take different routes depending on the court where the original order was made. You might be appealing an order from the Ontario Court of Justice or from the Superior Court of Justice. OCJ appeals go to a single judge of the Superior Court of Justice. SCJ appeals usually go the Ontario Divisional Court (ie. 3 SCJ judges exercising appellate jurisdiction). But sometimes, the appeal route is directly to the Ontario Court of Appeal. It all depends.
The appellate lawyer must know which set of rules to use for which appeal since OCJ appeal rules are found in the Family Law Rules, whereas SCJ appeals are found in the Rules of Civil Procedure.
From the OCJ, there is an unfettered right to appeal an interim order to a single judge of the SCJ. But you have to serve the Notice of Appeal within seven days. In the SCJ, there is no such automatic right; rather, you have to seek “leave to appeal” (special permission) and while there is lots of paperwork for such a leave motion, you don’t automatically get a personal audience before the court. Most leave motions are dismissed. The attitude is that you should just move your case forward to trial and leave it to the trial judge to correct any errors that might have been made in the first court.
You don’t need any special permission to appeal a final order from either court. But there are deadlines to serve your Notice of Appeal and related documents; it’s usually thirty days.
In child protection appeals, the time periods are often further shortened throughout the process.
Contrary to popular belief, an appeal is not a retrial of the case. An appeal is not a forum for the rehashing of evidence. On the contrary, an appeal is a measured review of the legalities and procedures that governed the previous judgment.
An appeal hinges on demonstrating errors in legal reasoning, not on presenting new evidence or novel arguments (but mind you in some limited situations, the appellate court might receive new evidence that arose since the trial). A successful appeal demands the identification of a miscarriage of justice. It’s not an argument about the emotions or the specifics of the case but it’s generally speaking about the law itself. This requires an analytical and disciplined approach that is distinct from the narrative-based strategies often deployed in motion and trial settings.
One might be able to appeal if the judge made factual errors that are so outrageous that the judge fell into legal error. It is not an issue of the judge favouring one witness (who you think was not credible) over the other; judges can do that and the appellate court will not likely intervene. Rather, it is an issue of the judge getting the facts all mixed up or just plain wrong and those errors would have surely affected the result. More attractive to the appellate court is the opportunity to correct an error in the judge’s legal analysis. Did the judge misapply the law to the facts of this situation? Did this legal error affect the result? The bar for appellate intervention is set quite high. Appellate courts tend to emphasize the finality often attributed to initial family law rulings, especially those where the judge observed the demeanour of the witnesses.
Time is of the essence when considering an appeal. Missing the stringent deadlines can mean forfeiting the opportunity to correct a wrong. The appellate lawyer must understand the timelines for serving and filing notices of appeal, the accompanying documents, and how to draft a persuasive attention-grabbing Notice of Appeal. (Hints: The grounds for the appeal must be eye catchers. Less grounds for appeal are better than many grounds.)
For final orders, the critical window is 30 days. This finite period serves as a test of the seriousness with which an appeal is pursued, and the agility it demands can be disorienting for those not accustomed to the pace and gravity of the Rules’ stringencies. This requires an immediate assessment post-judgment and an informed decision on the path forward.
I require some basic documents at the outset to have a quick look at:
The prospective consultee places those documents into a shared Dropbox. I then have a quick look at the extent of the documents. I then quote a block fee to review the documents in detail, to meet with the intended appellant, and to come up with an opinion on the merits of the appeal. The person is free to pay the block fee for the review and consultation or not. Once I receive the fee, then I delve into the materials and set up a personal zoom meeting with the person to secure further insights. At the consultation, I inform the person how much up-front money is required to get down to work.
If you’re considering the daunting task of appealing a family law order in Ontario, it is best to have an experienced appellate lawyer rather than try to do it on your own. Contact us today to take the first steps towards bringing your appeal or being advised not to bring an appeal. It all depends.
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]]>The post RELOCATION IN PARENTING (CUSTODY AND ACCESS) CASES IN ONTARIO appeared first on Gene C. Colman Family Law Centre.
]]>Ontario’s legal framework for relocation aims to prioritize the best interests of the child while ostensibly respecting the rights of both parents. The amended laws now require the relocating parent to formally notify the other parent of the intent to move, providing comprehensive details about the proposed new location and plans for maintaining the child’s relationship with the non-relocating parent
Family law in Ontario has provincial legislation (Children’s Law Reform Act) that applies. But where divorce is an issue, then the federal legislation (Divorce Act) applies. Amendments to these statutes came into effect on both levels on 1 March 2021. For divorce cases, we have reference to the Divorce Act, sections 16.8, 16.9, 16.9, 16.92, 16.93, 16.94, 16.95 and 16.96. Where divorce is not an issue, the Ontario Children’s Law Reform Act applies – sections 39.1, 39.2, 39.3 and 39.4. Both the federal and provincial statutes contain identical and almost identical provisions. There is likely little difference between the two. In this blog post, we will reference the Ontario statute.
Definition and Legal Ramifications
Section 39.1(1) obligates a parent to notify the other about a mere change in residence. But then section 39.3 obligates greater responsibilities on a parent who intends to relocate. The definition section of the statute does not define “change of residence” or “relocation”. It is best to seek out legal advice. If the move is going to have a “significant impact on the child’s relationship with the person”, then you are best advised to go with the more stringent requirements. And out of an abundance of caution, do not think that what you view as a mere ‘change in residence’ will also be seen as only that as opposed to a wholescale ‘relocation’.
Vast Majority of the Time:
The burden of proof or ‘onus’ sometimes changes depending upon the circumstances. If one parent has an order or agreement that stipulates that the child spends “the vast majority of time in the care of the party who intends to relocate the child”, then in that case the parent with the minimal amount of time “has the burden of proving that the relocation would not be in the best interests of the child.” [s. 39.4(6)] That’s a rather severe reverse onus provision!
This provision implies that when you first negotiate a parenting regime where you don’t get all that much time, at least include a notice provision and an onus provision that does not handicap you right out of the gate. Don’t stick yourself with having to later overcome an onerous burden of proof provision.
Some Factors Considered in Relocation Cases [s. 39.4(3)]
Several crucial factors come into play when courts decide on relocation cases, including:
Legal Process for Relocation
Navigating the legal protocol is essential for any parent contemplating relocation or resisting relocation:
Challenges and Recommendations
We have pointed out above that the section 24 “best interests” test still reigns supreme, albeit somewhat modified by relocation factors enumerated in s. 39.4(3). The notice requirements are important. The response requirements are crucial. Note that there are statutory exceptions to much of what I have written here. Whether you are proposing to relocate or opposing relocation, it’s not something that you should lightly take on all on your lonesome. A family law lawyer who is familiar with the legislation and caselaw can actually help you navigate all this.
Importance of Interim Motions
These relocation requests are most often decided at interim motions. Usually, the court decides interim motions based only on affidavits. If the court decides that relocation is to be permitted at this stage, that pretty much seals your fate, as it is highly unlikely that a trial court will force a move back to the original jurisdiction many months later.
In a recent case at our firm (at least “recent” as of the date of writing this blog post), we were counsel for a dad of an 8-year-old son. Both parents were living in Toronto. Dad was not able to drive. Mom gave notice under the CLRA of her intended move to Guelph. The judge summed up the key reasons for the proposed move:
They wish to move to Guelph because they can live rent free with her partner’s parents there, enabling them to save money and buy a home eventually, most likely also in Guelph, which she says they cannot afford to do in Toronto. She offers to do all the driving for the respondent father’s alternate weekend parenting time, and to add extra time during the summer to make for having to change his weekly Wednesday visits to zoom.
This mom already had the vast majority of the time and that was one mark against the father. The motion was in December 2023. The court noted that the next trial sittings would be in mid-April and then in July. The judge was not convinced that the order had to be made here and now. Her Honour concluded that the mom “has not demonstrated a compelling reason to permit the move to Guelph on an interim basis as it is unlikely a trial judge would move the child back. … While the mother may be successful at trial, there is not a “strong possibility” that she will prevail.” Motion dismissed!
Of course, our client was elated. But then imagine his utter joy when the mom then withdrew her request to relocate.
The point of this story is this: With strategizing, with diligent preparation, with effective advocacy both written and oral, it is possible to keep parents and their kids together. A knowledgeable family law lawyer will not guarantee success, but it will maximize your chances.
Conclusion
Remember, when it comes to family law and relocation, knowledge is power, and seeking early legal counsel can make all the difference.
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]]>The post Spousal Support in Ontario: Determining Eligibility and Amounts appeared first on Gene C. Colman Family Law Centre.
]]>In this blog post, I share with you some of my philosophical insights into the statutory and practical framework of Ontario spousal support. I hope that I succeed in giving you some practical pointers while at the same time sharing with you some of my views. Whether we are considering eligibility, amounts, duration or even the theoretical underpinnings of spousal support in Ontario, I hope that my insights will serve to enlighten and provoke considered thought. I aim here to dispel common myths and showcase the need for sound legal advice from experienced family law lawyers. For other blog posts that I have penned about spousal support, see the partial list at the very bottom of this post.
The first step is to determine if you have a legal right to spousal support. Are you married? Are you ‘common law’? How permanent was the relationship? Let’s delve deeper –
It follows that there has been plenty of litigation arguing about what these terms mean. It pays to secure knowledgeable legal advice.
Unlike child support, the determination of spousal support payments isn’t a straightforward multiplication but instead relies on statute, case law, and a research paper that establishes the Spousal Support Advisory Guidelines. There is plenty of judicial discretion built in. Let’s briefly look at some of the overarching factors:
Understanding whether the support claim is need-based or compensatory is crucial. Need-based support aims to address the immediate financial needs of the lower-income spouse, while compensatory support seeks to recognize the economic sacrifices made by one spouse during the relationship. In my view it is very important to identify the nature of the spousal support when the first agreement or order is made. That’s because if you try to change the order later, a lot may turn on what the nature of the original support order actually was in the first place.
The Family Law Act sets out the statutory purposes of a spousal support order in s. 33(8) and in s. 33(9) the Act goes on to list factors that are relevant to the amount and the duration of support. We reproduce those sections at the conclusion of this blog post. While the Divorce Act wording is somewhat different, practically speaking courts, lawyers, arbitrators, mediators and others tend to determine spousal support in the same manner no matter what Act applies to the situation.
Superimposed on the statutory scheme are the Spousal Support Advisory Guidelines. (“SSAG”). Don’t let the name “advisory” fool you. If you depart from the Guidelines, you better have good reason to do so. So says the case law. The SSAG try to mathematize the key factors that go into spousal support calculations. They provide a ‘rough’ sort of justice giving the participants a range with respect to both amount and duration. In practice, they seem to have taken away a lot of the discretion. One ignores the SSAG only at his/her extreme peril.
Myths about spousal support can often mislead individuals as they attempt to navigate their separation. It’s a widespread fallacy, for example, that cohabiting couples won’t face the same responsibilities as legally married couples. The truth is Ontario law provides similar protections for both.
Moreover, the notion that spousal support is a punitive measure or affects only one gender is misleading. Legal counsel can help clarify these aspects, ensuring that decisions are made based on facts, not on misconceptions, myths and stereotypes. Still the old prejudices die hard. I wish that I could be more optimistic.
Enforced compliance with spousal support orders (just as with child support orders) can be obtained through the Family Responsibility Office (FRO). However, should there be significant changes in circumstances, such as a substantial shift in either party’s income, modification (variation) of the support order might be necessary. Note that the FRO has no jurisdiction at all to change the order or agreement. Orders must be changed by courts. Agreements must be changed via the process stipulated in the agreement.
Spousal support seems to be premised upon the assumption that marriage (legal or common law) is based upon a partnership and when that partnership dissolves, the better off partner is obliged to financially care for the other partner. That ‘care’ could be for a year or two; it could be for a lifetime. It all depends.
While self-reliance or financial independence is a recognized legal principle here (eg. See Family Law Act, s. 30), there are many factors that will impact the determination of entitlement, duration and amount.
If you’re navigating the path of spousal support, whether with respect to entitlement, amount or duration, it’s wise to consult with a knowledgeable family law lawyer in Ontario. It’s just a smart investment.
We welcome your inquiries. Gene C. Colman provides in depth consultations on spousal support and other issues. To get started, you may start with telling us a bit about your case at our secure online form.
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33 (8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).
33 (9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).
What goes into determining spousal support?
4 mistakes to avoid if you hope to reach a reasonable spousal support outcome
Dispelling myths about spousal support
Tips for talking about spousal support
Tackling 3 common spousal support issues
Spousal Support (Alimony): What Ontario High-Income Earning Fathers Need to Know
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]]>The post Navigating the Complex Waters of International High Net Worth Divorces in Ontario appeared first on Gene C. Colman Family Law Centre.
]]>The first step is determining the jurisdiction where the divorce will be handled. Canada’s Divorce Act has jurisdictional provisions. A lawyer can help determine if Canada (and in our case, Ontario) actually has jurisdiction to take on the case. Note that mere citizenship does not attract jurisdiction in our country. There may be more than one possible jurisdiction that could entertain the case. What does any marriage contract say about jurisdiction? It is important to act quickly and wisely.
At the Gene C. Colman Family Law Centre, we liaise with lawyers in foreign jurisdictions so that the international team can determine which jurisdiction may be more favourable for the client and what the international ramifications may be for such issues as (1) which jurisdiction has the most favourable laws given the facts of your case; (2) what are the enforcement standards in each jurisdiction; and, (3) what are the tax implications in each jurisdiction.
Canada generally (with some exceptions) recognizes foreign court orders including divorce judgments, but the enforcement of foreign orders related to debts and assets as well as spousal support may require compliance with Canadian legal standards. A court may refuse to recognize a foreign judgment if it is contrary to Canadian public policy. An Ontario court may not recognize a foreign court order where the respondent did not receive notice or was not given an opportunity to be heard.
Where a high-net-worth husband secured a foreign divorce and two years passed since the date of the divorce, then the Ontario resident wife could be out of luck when it comes to asserting a property claim within Ontario.
In Ontario, property sharing is governed by the concept of “equalization of net family property”. This involves calculating the difference in the spouses’ net worth at the beginning and end of the marriage and equalizing the wealth accumulated during the marriage.
But please note that for Ontario’s Family Law Act to apply to property disputes, the last common habitual place of residence for both spouses must have been in Ontario. You can imagine that determining what facts meets that test requires legal expertise.
Assets and debts existing at the separation date, regardless of location, are generally subject to being included in the equalization calculation. This includes real estate, businesses, investments, and others. The Ontario court can consider assets and liabilities worldwide but Ontario cannot necessarily effectively ‘tie up’ foreign properties. (But it depends on the facts!)
Your lawyer must determine which if any international treaties and conventions may impact everything from choice of jurisdiction, to service of originating court documents outside Ontario, to enforcement of orders.
With your lawyer’s assistance, explore the benefits of mediation, mediation/arbitration, and arbitration in order to avoid court. But then we must keep in mind jurisdictional and enforcement issues and these considerations lead to the importance of liaising with legal counsel in the other jurisdiction.
As with all family law cases, one must ensure all relevant documents, including financial records, prenuptial agreements, and evidence of asset ownership, are well-documented. Clear and comprehensive documentation strengthens your case and facilitates a smoother resolution.
There are many aspects of resolving an Ontario family law/divorce case where international aspects come into play. You want your legal team to have adequate legal knowledge. By working with a family law lawyer who understands the intricacies of international divorces involving Ontario residents, you can hopefully achieve a fair and equitable resolution tailored to your unique situation.
If you find yourself navigating the complexities of an international divorce as an Ontario resident with high net worth, the Gene C. Colman Family Law Centre is here to provide guidance and support. Don’t hesitate to reach out for a confidential consultation with Gene C. Colman.
Contact us today to arrange an in-depth remote consultation, where Gene C. Colman can thoroughly review your situation, address your concerns, and help you understand your rights and options in this intricate process.
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]]>The post Navigating Social Media in Divorce: Protecting Your Case in Canada appeared first on Gene C. Colman Family Law Centre.
]]>Social Media Risks:
Almost anything posted online can be used against you in court, making platforms like Facebook, Twitter, and Instagram potential sources of evidence. Seemingly innocent posts can be misconstrued, influencing the court’s perception of your character. For instance, a casual night out could be twisted to depict you as an unfit parent or spouse. To mitigate this, exercise caution in your online activities and consider who can access your posts.
Impact on Child Custody:
In Canada, the court prioritizes the best interests of the child in custody (now called “parenting”) cases. Your online presence directly influences your ability to secure significant parenting time and decision making responsibilities for your child. Content related to inappropriate activities, such as drug use or excessive drinking, can be used as evidence against you. Therefore, exercising discretion in your online activity is crucial.
Legal Guidance:
If you’re going through a divorce or custody battle, consulting a lawyer familiar with the impact of social media on cases is essential. They can offer guidance on what not to post and how to protect yourself from negative consequences, ensuring your online presence doesn’t harm your case.
Protecting Yourself Online:
Closing Thoughts:
Divorce and custody battles are emotionally taxing, and social media can exacerbate the stress. Remember, every online post can impact your case. To help navigate this challenging time successfully, exercise caution and discretion online.
In the challenging terrain of divorce and custody battles, social media can come back to haunt you and add an extra layer of stress. Anything online can impact your case. Be careful.
The Gene C. Colman Family Law Centre can assist you in navigating potential social media pitfalls. Contact us today to arrange your in-depth remote consultation and take control of your divorce journey.
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]]>The post The Role of Forensic Accountants in High Net Worth Divorce Cases appeared first on Gene C. Colman Family Law Centre.
]]>A forensic accountant is a professional who combines accounting expertise with investigative and analytic skills to examine financial records and transactions, often in the context of legal matters. These experts are adept at uncovering and analyzing complex financial data, identifying irregularities, and interpreting their findings in an understandable way to non-experts.
In high-net-worth divorces, these experts play a crucial role by tracing and valuing assets, assessing income and expenses, and providing expert testimony in court. Their work becomes the cornerstone for achieving fair and transparent financial settlements amid intricate financial scenarios.
Forensic accountants contribute significantly to the clarity and fairness of divorce proceedings in Ontario through various functions:
A seasoned high-net-worth divorce lawyer can recommend a skilled forensic accountant specializing in divorce cases. This professional alliance facilitates the lawyer to interpret the accountant’s findings, integrate this information into legal arguments, and settlement negotiations, or utilize their court expertise to fortify your case.
If you are a high-net-worth individual navigating divorce, having an experienced lawyer by your side is paramount. The Gene C. Colman Family Law Centre collaborates regularly with some of the top forensic accountants in Ontario. Contact us through our online intake form or contact us directly to initiate a remote initial consultation. Discover how we can strategically position you for success during this challenging time.
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]]>The post Spousal Support (Alimony): What Ontario High-Income Earning Fathers Need to Know appeared first on Gene C. Colman Family Law Centre.
]]>Spousal support, also known as alimony, is a type of payment that a higher-earning (and not so higher-earning) individual pays to their ex-spouse after divorce. It is not a punishment but a financial duty to help a lower-earning former spouse maintain their standard of living. Courts consider several factors when determining spousal support, such as the length of the marriage, the roles of each spouse during the marriage, and the income disparity between partners.
Spousal support is a financial obligation that a higher-earning individual undertakes (sometimes not so willingly, LOL) to assist their ex-spouse after divorce. Rather than a punitive measure, it aims to help the lower-earning former spouse maintain their standard of living. Courts consider various factors, including the duration of the marriage, the roles each partner played, and income disparities. The Spousal Support Advisory Guidelines provide a framework for calculation, but high-income earners, especially those with complex financial structures, may face intricate calculations. Legal experts can assist high-earning fathers in accurately determining their obligations through thorough financial disclosure and analysis.
Calculating spousal support, particularly for high-earning fathers, involves considering numerous factors. While gender roles can be reversed, it often tends to be the higher-earning male partner who bears a significant financial responsibility. The law takes into account a multitude of factors to provide an outcome that balances the various factors. Here are some of those factors:
Contrary to its impact on marriages, infidelity does not affect spousal support calculations in Canadian courts. The focus remains on financial responsibilities, irrespective of marital indiscretions. While cases exist where spending on such matters could influence net family property calculation, the primary emphasis is on financial fairness rather than personal behavior.
Federal law mandates the calculation of child support before spousal support. High-income earning fathers should recognize that child support obligations can affect the available income for spousal support. However, specific situations vary, and legal counsel can provide insight into how child support may influence spousal support obligations.
The decision of a receiving spouse to remarry can impact support payments. Courts may re-evaluate or terminate alimony obligations if remarriage significantly changes the financial needs of the ex-spouse. Negotiating spousal support agreements should carefully consider the potential effects of remarriage and retirement, ensuring clarity and fairness.
It will also be important to take into consideration whether the original support order or agreement is more compensatory than the needs and means-based order.
If you still have questions about your rights as a high-income father in a divorce case, the Gene C. Colman Family Law Centre is here to help. Reach out to us for a remote consultation with Gene C. Colman personally, where we can review your situation and address your concerns.
Contact the Gene C. Colman Family Law Centre for your confidential consultation, or get started online now.
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]]>The post HIGH-NET-WORTH DIVORCE COURT LITIGATION VERSUS PRIVATE MED-ARB: WHICH IS RIGHT FOR YOU? appeared first on Gene C. Colman Family Law Centre.
]]>Court: Divorce litigation is a complex legal process that involves resolving divorce-related matters through the court system. The involvement of substantial assets in high-net-worth divorce cases only makes the litigation process more complicated.
Courts Backed Up: Many Ontario courts are simply hopelessly backed up. There are many Superior Court judicial vacancies that the federal government has neglected to fill. Many high-net-worth couples are turning to alternative modes outside of court to resolve their issues.
Privacy is another key challenge in divorce litigation, as court proceedings and documents are generally public, a significant concern for many high-net-worth individuals. Additionally, the duration and cost of litigation in these cases are often considerable, given the complexity of the issues and the resources available to parties with higher net worths.
Are There Alternatives?: Because divorce litigation is so complex, time-consuming, and costly, many divorcing couples consider alternative dispute resolution approaches. Mediation is one. Arbitration is another. The two wedded brilliantly together is called “med-arb”. It’s an astonishing hybrid process that combines the best of both modalities (being ‘mediation’ and ‘arbitration’) and brings to the divorcing couple many advantages such as convenience, choice of decision-maker, cost savings, finality, privacy, flexibility, and simplicity. Does Colman like it? You bet.
Your Own Chosen Decision Maker: Unlike litigation, in which a judge makes binding decisions, the med-arb process is distinct as the parties choose their own neutral third-party decision maker. Such a person is generally an experienced family law lawyer who is specially trained and trusted by both sides’ lawyers.
Two Stages: Med-arb is short for “mediation/arbitration”. The first stage is mediation. The neutral senior lawyer helps the parties reach their own agreement. If that becomes impossible, then that person puts on his/her arbitrator hat and decides the case just as a judge would. But the parties themselves, via their lawyers, have set up expeditious procedures that short-circuit much of the expensive, time-consuming paperwork that characterizes the divorce litigation model.
Why You Need Legal Help: There are unique dynamics in the med-arb model. It is important to have on your side a sensitive legal team who understand the nuances of the process. How you negotiate in the med-arb context, how you make interim compromises, how you position yourself for what might become a formal ‘arbitration’ – these are all factors that are crucial to high-net-worth divorces.
To appreciate the attractiveness of med-arb, let us first examine the palpable benefits of mediation.
Less Adversarial: Mediation is generally less adversarial and more collaborative, allowing parties to communicate with each other in a structured but less high-stakes setting. This aspect is particularly beneficial in high-net-worth divorces, where the complexity of assets requires detailed and nuanced discussions that aren’t always feasible in court.
Privacy: Another major advantage of mediation in high-net-worth cases is the privacy it offers. Mediation sessions are private and confidential, unlike the public nature of court proceedings in litigation. This confidentiality is attractive to many high-net-worth individuals, who generally wish to keep their financial affairs and personal matters away from prying eyes.
Save Time and Costs: Mediation is also often more time and cost-efficient than litigation. High net-worth divorces can involve lengthy and expensive court battles due to the extensive financial assets at play. Conversely, mediation allows for a more streamlined process, often resulting in quicker and less costly resolutions.
Flexibility: Flexibility is another key benefit of mediation. The parties have more control over the process and their agreements, which is particularly valuable in high-net-worth cases where standard solutions might not apply. This flexibility also extends to scheduling, allowing parties to work through their issues at their own pace rather than on the court’s timetable.
Med-arb Advantages: All these mediation benefits transfer seamlessly into the med-arb model. The key advantage is that if you don’t achieve that agreement in mediation, then the person who already knows your case will be the arbitrator or final decision maker. Your efforts to resolve this within the mediation stage are not wasted.
Most med-arb cases settle at the mediation stage. Need I say more?
Yes. Even if you choose med-arb over litigation for your high-net-worth divorce in Ontario, there are several reasons you’ll want a lawyer on your side.
Knowledge and Complexity: First, the complexity of high-net-worth divorces requires a lawyer’s in-depth knowledge. Lawyers experienced in this area can effectively handle complex financial matters, including business interests, investments, and offshore assets. They ensure proper valuation and disclosure of all assets, protecting your financial interests in the process.
Tactics: Second, a lawyer can provide valuable legal and tactical advice throughout the med-arb process. They help you understand your rights and obligations and ensure that any agreement you reach is fair and serves your best interests. This guidance is especially important in high-net-worth divorces, where the stakes are high, and the financial consequences are significant.
Drafting: Additionally, lawyers play a key role in drafting and reviewing both the med-arb agreement that kicks off the process as well as any mediated resolutions that may be achieved. The lawyer ensures that any agreements adhere to legal standards and are both enforceable and fair, preventing future disputes or legal challenges.
If you are considering high-net-worth divorce court litigation versus private med-arb, the Gene C. Colman Family Law Centre is here to guide you throughout the process. Secure the support and guidance you deserve in this critical phase of your life. Contact us today to arrange your remote initial consultation, or get started online now.
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]]>The post Navigating High Net Worth Divorce in Canada: An Introduction appeared first on Gene C. Colman Family Law Centre.
]]>Divorce is never easy, but high net worth divorces often involve complexities that others do not. Here are some of the unique challenges that accompany such divorces:
Lawyers handling high net worth divorce cases employ various strategies to address the complex financial and legal issues these cases present.
The lawyer should put together a well-qualified team of experts, including forensic accountants, appraisers, and business valuators. One wants all assets and liabilities identified as at the date of marriage, date of separation, and (in some situations) current date. Then the task becomes affixing a “fair value”.
Tax optimization strategies are key in high net worth divorces, so lawyers frequently collaborate with tax specialists to minimize the government’s cut upon the division of jointly owned assets.
Lawyers also prioritize client privacy in high net worth divorce cases. They often engage in alternative dispute resolution methods, such as mediation/arbitration, to avoid the publicity of court proceedings. They can advocate aggressively for their client’s financial security, negotiating settlements that preserve their lifestyle to the greatest extent possible or safeguard assets that are rightfully theirs. Throughout the process, a good lawyer will maintain clear, proactive communication to provide guidance and build a strong relationship built on trust.
Choosing the Gene C. Colman Family Law Centre for your high net worth divorce case means placing your trust in a team committed to providing tailored legal solutions.
Our lawyers have experience in resolving complex matters involving parenting, child and spousal support, and high-value asset valuation leading to “equalization of net family property”. The arrangements we help to facilitate will affect your future for years to come. We aim to resolve your case in a way that allows you and your family to proceed with life in comfort and dignity.
Gene C. Colman has been a pioneering figure in family law since 1979 and the founder of a leading national family law journal. With him in your corner, you gain access to his experienced legal insights about a range of issues applicable to your case. Visit our “consultation” page for more information about our in-depth consultations. Get in touch with the Gene C. Colman Family Law Centre today to take the first steps to arrange your initial remote consultation with Gene C. Colman.
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]]>The post The Five Things That Every Separation Agreement in Ontario Must Address Under the Family Law Act appeared first on Gene C. Colman Family Law Centre.
]]>A valid separation agreement must address the ownership and division of property. Both parties must create an inventory of all joint and separate assets. This list should include not just real estate but also bank accounts, investments, debts, and other significant property like vehicles or valuable heirlooms. The standard court form that shows values on three dates (marriage, separation, current) should be used.
Special consideration goes to the matrimonial home if one exists. In Ontario, where the spouses are legally married, the matrimonial home attracts special statutory rights regardless of whose name is on the title. In many cases, couples choose to sell the home and split the proceeds (but be careful where only one spouse is the titled owner – things can work out strangely under the law).
Addressing support obligations is also essential in crafting a valid separation agreement in Ontario. There are generally two types of support obligations that may be relevant: spousal support and child support.
In both cases, the separation agreement should outline the amount of support to be paid, the frequency of payments, and the conditions under which these amounts can be changed. Specific clauses can be included for instances like changes in income, remarriage, or cohabitation with a new partner, which could affect support obligations.
This element pertains to how any children from the partnership will be raised, what educational institutions they will attend, and what moral or religious teachings they will be exposed to. Since these are potentially sensitive topics that greatly impact a child’s upbringing, parents must communicate openly and arrive at a mutual decision in their separation agreement.
The agreement could specify, for instance, whether the child will attend a public or private school or receive homeschooling. If religion plays a significant role in the family’s life, the agreement could outline how and where the child will receive religious education. Some parents also include provisions for extracurricular activities, tutoring, or other educational opportunities.
Parents’ separation agreements should outline decision-making responsibilities and parenting time for children (terms that replaced “child custody” in 2021). Decision-making responsibilities cover important areas like healthcare and discipline. The agreement should specify whether parents will make these decisions jointly or independently. Parenting time addresses when each parent has physical care of a child. This can range from alternating weeks to weekends and weekdays with different parents.
The agreement should also account for holidays and special occasions, detailing how parents will share or alternate custody during these times. And since family circumstances can change, it’s best to include a method for revisiting and revising the agreement.
The law also specifies that separation agreements must address any other matters that are necessary to settle the couple’s affairs.
Couples may also decide on specific arrangements for the care of family pets, setting guidelines on who gets the pet and/or how they will share expenses.
There are many resources online for parents. One of the best is the AFCC-Ont Parenting Plan Guide that includes explanations and a large body of precedents.
The decisions you make in your separation agreement will have long-lasting implications for your future. To make sure you’re covering all your bases and either following Ontario law or deviating from it in a permissible manner, you should seek dependable legal advice.
Contact the Gene C. Colman Family Law Centre for your confidential consultation, or get started online now.
The post The Five Things That Every Separation Agreement in Ontario Must Address Under the Family Law Act appeared first on Gene C. Colman Family Law Centre.
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