He should pay for my lawyer’s fees!

Jill is really frustrated.  Jack has failed to provide the financial documentation she needs to determine his “true” income for support purposes.  As a result, Jill’s lawyer has recommended that she obtain a court order forcing Jack to provide the information.  Since it is Jack who is refusing to comply, Jill feels that he should be responsible to pay for all the legal fees associated with this court proceeding. However, Jill’s lawyer made it clear that although she will make the request, the final decision is within the judge’s entire discretion.  The judge may, or may not, make an “award of costs” forcing Jack to pay some or even (more rarely) all of Jill’s legal fees. 

 

The number one frustration encountered by a client in a separation process is when he/she is obligated to pay an important amount of legal fees to start a court proceeding just to compel an ex-spouse to do things that he/she should have been doing readily and willingly (i.e., providing financial disclosure, paying child support, paying their share of joint debts, signing a consent to travel abroad with the children, etc.). In Ontario, the court process is designed to promote settlement discussions between the spouses.   Thus, to move the matter towards settlement, the spouses have the obligation to participate in various types of conferences (i.e., case conference, settlement conference, and trial management conference) before they can proceed to adjudication processes (processes where evidence is presented to the judge and the judge imposes a decision on the parties).  While a conference is a less costly settlement oriented process than an adjudication process, judges do not usually award costs in the context of those conferences, unless it is very clear that one party has abused the process. 

 

As a result, it is important to understand that before engaging into a court proceeding (conference or adjudication), you must be able to pay for all the legal fees stemming from the process as you may, in the end, only be able to recover a slim portion from your ex. Court should always be the last alternative in a separation process because the cost of the process may very well exceed the benefit that you gain in the end.

Should you try to make Christmas perfect?

Last year was the first Christmas after the separation.  Although the holidays went fairly well given the circumstances, Jill is feeling the pressure of making Christmas perfect.  The children are asking for an IPOD, and IPAD, and IPHONE, an XBOX just to name a few big ticket items on their wish list. Jill earns a lot less money than Jack and cannot afford the luxurious gifts he buys the children.   She also feels guilty that she will not spend Christmas morning with the kids and thinking of the loneliness is just overwhelming.   She knows that she has to stick to the budget and that money does not buy love. However, when it comes to the children Jill usually overspends.  

 

In preparation for Christmas Jill made a list of 5 goals she will try to respect during this holiday season:

 

1.  Make a list of gifts. Set a budget and stick to it.  Shop early – avoid last minute temptations and overspending. 

 

2.  Talk to the children and Jack about Christmas and New Year arrangements well in advance – good planning and realistic expectations can prevent frustrations and disappointment.

 

3.  Remain flexible during the holidays - avoid disagreements, dramatic people and uncomfortable conversations after all “it’s the season to be jolly”.

 

4.  Enjoy myself – spend quality time laughing with family and friends, the support of loved ones can provide strength to move past a difficult situation.

 

5.  Remain positive – Choosing to learn from this hurtful life experience can help you grow into a stronger, wiser person.

 

An offer to settle? Is my lawyer losing trust in my case?

The trial in Jill and Jack’s family matter is approaching.  They have not yet been able to settle their disputes over financial matters and the judge overseeing their court case has advised them that he was “setting this matter down to trial”. Family judges often do that to force the parties to be reasonable and be pro-active about settling their affairs. As a result, Jack’s lawyer has recommended that an offer to settle be made to Jill, emphasizing the fact that the offer is a significant compromise on Jack’s part. In other words, Jack’s lawyer is proposing to settle financial matters for an amount significantly less than what Jacks believes he is entitled to.  Jack wonders why he would do that and is beginning to think that his lawyer may not be advising him properly.

 

In fact, this is really good advice that Jack is getting. The role of offers to settle in a family court proceeding must not be understated, as they can have a significant impact on the dollars you might be able to recoup at the end of the day.  If accepted by your ex-spouse, an offer to settle will end your court case definitely.  This means, among other things:

• No more legal fees to pay (thousands and thousands of dollars of savings);
• You will not have to go to trial (no need to spend an entire week – or more – under stress, telling a perfect stranger about your most private affairs with your ex-spouse);
• No more stress over the legal proceedings (sleep at last); and
• The right for you and your children to live in peace, and finish grieving the end of your relationship. 

If your offer is not accepted by your ex-spouse, then making a « low ball » offer to settle will have the effect of protecting yourself against the high costs of divorce litigation. At the end of a full-blown trial, the judge will have the obligation to consider costs spent by each party in the court proceeding, and to award costs in favour of one party against the other.  This means that the judge will have the right to order one party (usually the party who “lost”) to pay to the other party (the “successful” party) an amount to compensate him or her for the legal fees paid throughout the proceeding.  The judge will look at the offer to settle that was presented before trial. If some of the terms of the offer were more beneficial to the other party then what was ultimately offered by the judge, the court is directed by law to make a cost order against the party who failed to accept this most beneficial offer for the time wasted going to trial. As a result, a “low ball” offer to settle can become very beneficial in the end. 

 

Everything in family court is about being reasonable.  While you may think that you have a 100% chance of success in the position that you are advancing in court, history has shown that, in every single case, at least one of the parties end up disappointed.  Making every possible effort to settle your family issues out of court could mean accepting a bit less than what you think you are entitled to. Most importantly, it could mean finding peace of mind. Often, settlement is a question of perception:  is your glass half-empty or half-full?

 

If I have to see you in court honey, you’ll have to pay my legal fees!

Jack and Jill have been trying to settle their separation issues by themselves for a couple of months now. Jill is getting frustrated with Jack because he does not seem to take their separation seriously.   She does not see any other options than to retain a lawyer and go to court.  She is convinced that once they go to court the judge will tell Jack what he needs to hear.  But when Jill finally met with her lawyer, she was a bit surprised by (and disappointed with) her lawyer’s comments and reluctance to engage into a court action.  She wonders if she hired the right lawyer…  In fact, Jill’s lawyer has explained to her that the court process is not only very time and emotionally consuming, it will also be very costly.  However, Jill is convinced that she will win hands down on all issues and that, in the end,  Jack will be responsible to pay for all her legal fees.

 

Many separated couples believe that going to court is the only way they can get someone to pay attention to what they are saying. They believe that they are right, the other spouse is wrong and that the court room will be the venue where the winner will take it all.   But legal fees to get there are a very important aspect to consider when making the decision to resort to the judicial system.  While a court may order the “losing” spouse to pay part of the other spouse’s legal costs to prepare and attend court, it is highly unlikely that the judge will order that ALL costs incurred be paid back to the “winning” party.   In addition, considering that most cases eventually settle out of court (less than 3% of all family court cases end in a trial, where costs orders are made), opportunities to get the big fat cost order are very rare.

 

In addition, it is not because a party wins in court the he/she will necessarily get his/her legal costs paid by the loosing party. In deciding whether a party should be responsible to pay for the other’s court costs, the judge will look at different factors such as: Were the parties reasonable?  Did the spouses make reasonable efforts to settle the case?  Did one of the parties fail to accept a reasonable offer? Did one spouse act in bad faith? Did one spouse pursue unrealistic claims? and the list goes on and on…

 

So no one should ever go to court thinking that they will win it all, or thinking that the other party will have to pay their legal fees.  When making the decision to go to court, you need to start from the premise that any and all legal fees paid to your lawyer will be on you, and that you will be lucky if at the end of the day a judge orders your ex to pay some of them.  This is why it is so important to make sure that you have tried every possible way to settle out of court before you chose this very lengthy and costly avenue.

Four crucial rules to help you win your case in Family Court

Jack has just been served with divorce papers (in lawyer’s terms, that’s a court application in which Jill is seeking a divorce, sole custody of the children, support, and many other things).  Stressed, Jack has not wasted one minute to immediately set up a meeting with his lawyer, and together they have discussed a strategy on how to respond to the court case, and how to behave now that the matter is before the court. As Jack will soon find out, there is rarely a quick and easy divorce (unless you have been separated for many years, all issues have been resolved and the only thing asked of the court is to finally grant the divorce).

The road to obtaining a final court order can be very long, time consuming and stressful.  Without your ongoing help and input, your lawyer’s power to obtain what is rightfully yours is significantly diminished.  You are the only person who knows the facts of your story inside out and as such, you are key to your lawyer’s ability to win your case.  If you do not behave properly during the long months it will take to bring the court proceeding to an end, you may be giving your ex-spouse what he/she needs to have the upper hand at the end.

Here are four simple – but ho! so very important – rules to follow to make the court proceeding much easier for your lawyer, yourself and the children:

1.      Keep a journal.  Keep a journal of all the important events taking place post-separation. Your former spouse may say things to you, or act in a manner that will need to be relayed to a judge down the road.  Memory is a faculty that forgets easily especially in times of extreme stress and crisis.  Keeping a detailed written record of these occurrences will serve as a helpful reminder at trial and will also enhance the credibility of your oral testimony since it was written at the time the events actually took place.

2.      Start collecting important documents. Going through a court process means presenting to the court all of the evidence it needs to make a fair decision about each disputed issue in your case.  For that to happen, you must provide the judge with all the relevant evidence supporting your position.  As soon as you separate and even before you separate, start collecting all of the necessary documents such as bank statements (confirming your debts and assets), income information, relevant contracts, business records, emails, letters, medical reports, expense receipts and so on.  Make photocopies of ALL documents that you think may be of importance, you never know when you will need them (we have an excellent program on gathering relevant documentation in our Study Box: Find out more (click here).

3.      Be polite and to the point in email contacts and refrain from using social media to vent your frustration. More especially if children are involved you will likely have to continue to communicate with your former spouse after you separate. If you must communicate with him or her, be polite and to the point. There is nothing more damaging to your case than your former spouse bringing emails or Facebook messages he or she received from you showing how angry, mean and denigrating you have been. Further, if you are seeking custody of your children, you need to show the court that you can effectively communicate and cooperate with your former spouse for the sake of your children.

4.      Be as reasonable as possible and maintain your credibility at all times.  This might be the most important tip you are given here.  It will be a long time before you are actually standing in the witness box telling your story.  In the meanwhile, the judge will only be able to assess your credibility by listening to what your lawyer is saying about you or by reading written materials prepared by your lawyer on your behalf.  Since they cannot really assess credibility (this means being able to tell whether you or your ex is lying) in those situations, they will give a good hard look at your actual actions:  Who has cut the other from the health plan coverage?  Who has maxed out the joint line of credit?  Who is refusing to pay his/her rightful share of the mortgage?  Who is asking for the sky, the moon and the stars as a starting settlement position?  It is said that your past behaviour is often a good indication of your current and future behaviour.  Think of how you want to be perceived and if you don’t like the current story, just change it positively. 

This practical advice may ultimately help you win your case in court.

Spousal support? Are you kidding me??

Jack and Jill both met in university.  During their last two years of university, Jack and Jill moved in together and married a few months after graduation.  The couple were advancing in age and as Jack was making a decent salary that could support the family.  They then decided that Jill would stay home with the children until they were in school. But Jill never truly started her career.  She is working part-time for the local television station, which gives her time to attend to all of the children’s medical and extracurricular needs. Her annual income is not sufficient to be self-supporting. Jill is completely discouraged especially in this time of recession where no one is hiring and all of her friends are being laid-off.   Jill has been told by her lawyer that after 13 years of marriage she would most likely be entitled to spousal support.  Jack disagrees stating that it was Jill’s decision to stay home while he worked his butt off all these years to support the family. 

 
Unlike child support which is calculated according to a specific amount set out in the Federal Child Support Guidelines, spousal support is not set in stone.  If the parties disagree on the amount to be paid, or for how long, the court will be required to make a decision and they have much discretion in setting those parameters.  The following factors, among others, will be considered: 

- The number of years during which the parties have lived together;
- The parties’ respective income;
- Whether the couple still have dependent children;
- The parties' age as well as their physical and mental health;
- The parties’ standard of living during the relationship;
- The parties’ current assets and financial means, including what they are likely to earn in the future;
- The capacity of the recipient to contribute to his/her own support, by working or otherwise, and the amount of time it will take him/her to achieve self-sufficiency;
- The payer’s capacity to pay support; and
- Whether or not the recipient has helped the other spouse to build a career or a business.

 

In general, the duration of spousal support can vary from 0.5 to 1 year of support for each year the couple has cohabited together (note that it is the years of cohabitation that count, not the years of marriage).  In certain circumstances, such as when a couple has cohabited for more than 20 years, the support may be payable for an “indefinite” duration.  This means that the support will continue to be paid until an important change occurs (such as remarriage, retirement, important change in income, etc.).

The right to ask for spousal support is automatic for married couples. With regard to common law spouses, it varies from province to province.  In Ontario, you can only ask for spousal support if you have lived together for 3 years continuously, or if you have a child together and live in a relationship of some permanence. The same factors (as listed above) are relevant for married and common law couples.

For more helpful information about spousal support or the rights of common law spouses, subscribe to our full library of recorded programs (Study Box) available 24/7 at www.familylawinabox.com (click here to be directed to our Study Box).

 

Child Support – Why should I support my wife’s shopping addiction?

Following many discussions, Jack and Jill have finally agreed for Jill to have the children in her primary care (equal to 70% of the time) and Jack, because of his work obligations and difficult schedule, will have them in his care every second weekend including one or two evenings in between (or 30% of the time).  As a result of this arrangement and because he earns a substantially higher income than Jill, Jack’s monthly child support payment will increase.  Jack is concerned about Jill’s love for shopping. While he financially supported it during the marriage, Jack is convinced that a good chunk of the child support he will pay will not be spent on the children. Jack spoke to colleagues at work who used all sorts of strategies to reduce their child support payments. He wonders whether he should have insisted to have the children 50% of the time and whether it was a good idea to accept the long-awaited promotion handed out to him at work, resulting in a higher income… and higher child support payments.

Both of these options are not advisable.  Firstly, a parent should never make parenting decisions based on financial considerations (i.e. with a view of reducing child support).  The court would readily see such a decision for what it is and the parent would lose credibility before the court (or a mediator).  Decision-making authorities assess parenting arrangements based on what is in the best interest of the children, and nothing else.  Rights and obligations regarding children are the same whether you are married or living in a common law relationship.

In the same way, it is a terrible idea for a parent to take steps to quit a well-paying job or to voluntarily reduce his/her annual income to avoid paying child support.  If a court finds that the payer parent has voluntarily reduced his/her income, it may impute an annual income that is greater than the one shown on the income tax return.  The amount of the imputed income will be based on what the court believes the payer parent has the capability to earn.  Following the court decision, that parent will be obligated to pay the higher basic child support amount imputed.  

Many payer parents are concerned with the way basic child support is being used by the recipient parent. While this may be frustrating in some circumstances, the payer parent has no control over the money once it has been paid to the recipient parent. What payers need to understand is that basic child support is not meant to cover strictly expenses that directly benefit the children themselves (such as food and clothing).  It also serves to cover expenses which benefit the children indirectly (although it also has the effect of benefitting the parent as well), such as the mortgage and utilities (for the home in which the children live), the car (which is used to travel them around) and, yes, even the brand new porch…

The payer parent should also keep in mind that in the Federal Child Support Guidelines, basic child support amounts vary for each Canadian provinces and territories and are set based on the amount that an individual parent, with a specific income, is expected to spend to provide for his/her children.   It is simple, the higher the income, the higher the child support amount will be.  Although a payer parent may feel that it would be « cheaper » not to pay child support and to have the children half the time instead, let’s remember that raising children is extremely expensive (many little things, which you may not think about, result in considerable costs when pulled together; haircuts, school lunches and activities, birthday parties, toys, personal care items and, yes, those LuLu Lemon pants…).  In the vast majority of cases, the basic child support amount will not be sufficient to cover that parent’s share of the children’s expenses (both direct and indirect) and the recipient parent will often have to modify his/her current standard of living to support the children financially.

For more helpful information about basic child support and or extraordinary (special) expenses, subscribe to our full library of recorded programs (Study Box) at

www.familylawinabox.com.  (click here to be directed to our Study Box)

Should we involve the Office of the Children’s Lawyer in our parenting dispute?

Jack thinks that Jill is unreasonable when making plans regarding the children.  She refuses to be flexible when it comes to dividing the time with the children on holidays, sharing information from the school, or letting him take the children for more than a few days here and there. Jack wants to have the children with him half the time to regain his place as a parent in their lives.  His friend has suggested that he should consider getting the Office of the Children’s Lawyer (OCL) involved but Jack is leery to engage the children in a process that he does not understand. 

The Office of the Children’s Lawyer is a government-funded organization that oversees that justice is being served on behalf of children (under 18 years of age) through the delivery of various services in the province of Ontario.  It is important to note, however, that the OCL’s involvement in custody and access cases is not automatic.  Their services may be requested by a judge in the context of a court case but there is no guarantee that the OCL will provide services.  If it does, then those services will be provided free of charge to the parents.  In essence, the OCL steps in as an objective third party to introduce some impartiality in disputes between parents.  The OCL can provide two very useful services: independent legal representation for children and custody and access assessments performed by trained social science professionals.

Independent legal representation will normally be provided when the child is older or at least sufficiently mature to express his opinion about his preferences. The child’s lawyer will be an advocate for the child and his/her role and responsibility will be to convey to the judge the child’s wishes and preferences with regards to the visitation arrangements that he would prefer.  For younger children or for families that present important challenges (such as allegations of domestic violence, substance abuse, parental alienation or where a child has special needs), the OCL may become involved by carrying out a comprehensive family assessment.  Following such an assessment, the OCL’s clinical investigators will report to the court to provide recommendations about the custody and access arrangements that would be best for the children.

The OCL’s services are very effective at helping parents make decisions that are in the best interest of their children, when they have not been able to do so on their own. Of course, it is always best for everybody when parents are able to agree between themselves as to what is best for their kids, as parents may not be happy with the recommendations made by an outsider, be it a judge or the professionals working for the OCL.