News

2015.April.16.

The Globe and Mail

How To Be a Better Parent

by Erin Silver

Excerpt from article:

“Ari’s sixth birthday party was perfect. Despite a late winter snowstorm, all his little friends made it to an indoor baseball stadium to play ball. There were baseball plates and balloons and a chocolate cake iced with green grass and miniature baseball characters running the bases. There were even ring pops – World Series rings – that turned all the kids’ smiles blue and red, my boys, Ari and his four-year-old brother, Josh, included.

Although it was a great day for my kids, I nearly had a panic attack before the party began. This was the first time since my divorce from their father, Shawn, that we held a party that included not just me and Shawn but also Shawn’s girlfriend and my boyfriend and his daughter. We made a strange extended family. It would be awkward, but we were determined to show that we were somehow, in some way, still a family. We wanted our kids to know that divorce didn’t have to be a dirty word.

That party couldn’t have happened had it not been for one significant process: mediation.

Although our divorce was nearing completion, we realized that if we wanted to parent as a unit over the long haul, we needed help learning to work together.

When we separated nearly three years ago, it felt like an apocalypse. We fought constantly. Days would go by when we didn’t speak; it was too painful to hear his voice. During stressful times and legal proceedings, our hatred for each other was palpable. For weeks, we avoided eye contact at pickups and dropoffs – we literally couldn’t stand the sight of one another.

Yet, our kids bound us together for life, even if our vows didn’t. We had intended to teach our children to ride their bikes in front of our home, but after we split, our goal changed. We had to learn to get along well enough to walk our boys down the aisle at their weddings.”

Excerpt from article:

“Raising kids really is a job for two people – at least – and I was resentful that I had to suddenly juggle bills and house repairs and a job and kids and dating all at once. My life had been turned upside down.

But if there was one thing we could agree on when we were too angry to agree on anything, it was that we needed help. Several months ago, we met with Stella Kavoukian, a mediator and therapist who works with children and adults experiencing a variety of issues, including separation and divorce. Our hope was to have her help us resolve disputes and improve our communication.

We had a stack of issues to sort through. There were feelings of aggravation and mistrust after we legally ended our marriage. We had said a rash of unkind things to one another that we couldn’t take back. We struggled with the concept of having to raise kids together when it felt like we no longer even knew one another.

Seeing a mediator was an emotional process, but we weren’t capable of figuring out how to do this divorce thing right on our own. Before our first joint session, we each met with her separately to explain our concerns. At our first appointment together, Kavoukian laid down the ground rules, giving each of us a chance to speak and explain our perspective before the other could jump in. It was hard, at times, to keep us both in line, but no matter how many tissues we used, we were determined to see each session through to the end.”

Excerpt from article:

“Divorce is difficult and painful,” Kavoukian said in an interview. “Regardless of who initiated the separation, it’s a huge loss for each parent, as well as their children. Similar to when one loses a close friend or family member, there is much grieving involved. There is also usually quite a bit of apprehension, if not fear, regarding the future.”

It’s hard to cope – and to co-parent well – when you’re balancing these feelings with meeting your children’s needs. Kids do as well as their parents do,” Kavoukian said. “We are their role models. The better that parents are able to communicate and resolve issues, the better their kids will be able to manage their own relationships throughout life.”

Excerpt from article:

“Today, we function more like business partners than friends, but we have added a few nice touches. We take the kids to buy one another gifts for our birthdays, Mother’s Day and Father’s Day. We sort out holidays easily enough so that our kids can spend vacation time with each of us. We trick or treat together every Halloween; neither of us can bear the thought of missing out simply because it’s “not our day.” We send one another photos of the kids, so that neither of us is excluded even from the parts of their lives that we are technically missing. And a few times a year, we sit side by side, or with a chair in between us, through their hockey games and school holiday concerts, waving to our boys.

All this constant communication and compromise, all this thoughtfulness, makes us more functional in divorce than we were in marriage.”

READ FULL ARTICLE HERE: How to Be a Better Divorced Parent by Erin Silver, The Globe and Mail.




2012.February.17

The Lawyers Weekly

Eighteen Things You Can’t Get in Court

by Lorne Wolfson

[Article in Full Below]

“Skilled family mediators and negotiators will emphasize to parties the things they can obtain in a settlement, but not from a court.”

Here are 18 of them:

1. Confidentiality

The courts are very reluctant to order the sealing of a court file. Since a reported decision may attract the attention of creditors, Canada Revenue Agency, Children’s Aide, the police, professional discipline bodies, business competitors, even the media, confidentiality can be important to many spouses.

2. Non-variability of support

Support orders are generally variable in the event of a material change in circumstances. It is rare that a court will make a support order that is non-variable. Settlement offers the opportunity for a non-variable support arrangement.

3. Review of support

The party who initiates a variation must prove a material change in circumstances. A review is a fresh look, which is scheduled at a pre-determined date. While most judges believe they do not have the jurisdiction to impose a review, the parties can include it in a negotiated agreement.

4. Formula for determining income

By agreeing to a formula, often the parties can simplify the income-determining process, thereby saving legal and accounting costs.

5. If and when division of income

Where a party is a beneficiary of a discretionary trust or has options or restricted share units that may or may not pay any benefits in the future, a more practical option (available in settlement, but not from a court) is to divide the asset on an “if and when” basis.

6. Release of spousal support

A court order for no spousal support does not preclude a party from claiming spousal support in the future. A spousal support release on the other hand, prevents the claimant from ever asserting such a claim.

7. Swapping/sharing assets

A court has no jurisdiction to require one joint owner to purchase the interest of the other, to require parties to swap assets or to divide chattels on any basis other than ownership. One joint owner may purchase the interest of the other at current values. Where the parties agree to treat an asset as if it were jointly-owned, they can avoid a dispute as to who benefits from the post-separation changes in value.

8. Assuming debts

A court cannot order one party to assume the other party’s debts or share a joint debt. Where one party retains jointly-owned property, it will usually make sense for that party to assume sole responsibility for any associated debt. While a creditor cannot be forced to co-operate, usually the problem can be resolved by refinancing or an indemnity.

9. Paying support directly to a third party

Often a party is prepared to pay support to a third party, but not to the other spouse. Courts are very reluctant to put strings on the money in the recipient spouse’s hands. Where the payor’s concern is an impediment to settlement, a carefully drafted agreement can often overcome this obstacle.

10. Custody/access concessions in exchange for financial benefits

Courts will generally treat custody and access issues separate from support issues. While some may find trading custody/access concerns for financial benefits to be morally and legally repugnant, others will acknowledge that it happens anyway in most settlement negotiations.

11. Creditor-proofing

While judges must be very cautious about making orders in family law cases that affect the rights of third party creditors, many parties will negotiate “friendly settlements” to protect the family’s assets against their creditors.

12. Settlements involving third parties

A court order will not end the involvement of third parties who are not parties to the litigation nor will it resolve a dispute involving third parties. Only a comprehensive multi-party settlement can resolve all issues, including all claims by or against third parties.

13. Support adjustment clause

A payor whose income is uncertain may be reluctant to commit to a support deal that assumes a level of income that he may not actually receive. One solution is an automatic support adjustment formula.

14. Dispute resolution clause

Many separation agreements contain a dispute resolution clause that provides for cost-effective mediation/arbitration of future disputes.

15. Parenting co-ordinator

A parenting co-ordinator is a mental health professional who has training in resolving custody and access disputes. Ontario courts do not have jurisdiction to appoint a parenting co-ordinator unless the parties consent. As a result, this valuable dispute resolution resource can only be available through a settlement.

16. Arbitration of division of chattels

A mediator/arbitrator can design a summary process whereby the parties’ chattels can be divided on a an equitable basis, thereby avoiding a judicial sale.

17. Experts: quick and dirty/joint/binding/hot-tubbing

An expert can provide an informal report for settlement purposes at a lower cost than a formal court-ready report. The experts can be brought together (“hot-tubbing”) to discuss differences between their opinions, with a view to either reaching a consensus or at least narrowing their differences.

18. Creativity with taxes

Negotiated agreements can allow the parties considerable scope for creativity in structuring their affairs in a tax-efficient manner. Once the parties understand that the pie can actually be made larger, they may be less concerned as to which spouse gets the larger piece.

LINK TO THE LAWYERS WEEKLY WEBSITE

LINK TO LORNE WOLFSON’S INFORMATION