02 July 2018

Financial Neutrals in the Collaborative Process



Everyone knows that divorce is stressful.  And if you didn’t know that, I’ve done some analysis on it to prove it to you.

But nobody seems to know or understand the separation process: having to navigate the rubble of your hopes and dreams to create a Separation Agreement that you never wanted in the first place.  

No one seems to understand the specific pain that you are in, that your understanding of your world has been stood on its head, or that the reactions and emotions you feel are reasonable given that your divorce may have been or not been of your choosing.

All anyone wants to talk about is the money and the law.

What monetary value can be placed on disappointed hopes, smashed trust and fear for the future? Are there enough resources in the world to assuage anger, grief and feelings of failure?

And tell me exactly, how is the law fair? Laws designed to encompass all, yet at the same time fit no one’s specific situation.

How do I know this? I've been there. I spent years in conflict with my spouse before getting thrown into the separation process and I’ve spent five years since then learning a better way to do conflict.

My role as a Financial Neutral is multifaceted but my main role is as an educator of the Collaborative Process.  Until this becomes the undisputed first choice of separating and divorcing couples, this will be how I will spend most of my time working on client files.

I am also an information gatherer. I gather financial information and I then I mine that information for what is hidden amongst that numbers:  the hopes and dreams of the parties involved and the hidden tax consequences, financial pitfalls or potential financial benefits of different courses of action.  

And lastly, I am a communicator. As the neutral in the Collaborative Process, I can share the information with everyone on the file in a clear and unbiased manner so that the parties involved can begin to discuss options that can combine with their newly discovered hopes and dreams to create the Separation Agreement and life they want post-divorce.

I have worked on files that I would consider successful Collaborative files and on files where “we did the best we could under the circumstances.” And that is what I’ve discovered makes the difference on successful and not so successful files: the circumstances of the file. 

This is what makes for a more successful file, in my experience:

  • Luck!  In that at least one party understands how the Collaborative Process works and can convince their partner to try it or luck in that the first point of contact for the separating couple is someone who can convince both parties of the merits of the Collaborative Process so that the parties willingly sign a Participation Agreement.
  • A standardized process in which it is assumed that all team members: Collaborative Lawyers, Divorce Coaches, Financial Neutral and a Child Specialist, will be involved from the beginning of the process. If it turns out a specific professional is not needed, then they can be phased out of the process. This is far easier to do than adding them in later when the file has become stuck.
  • A process where the financial information is gathered at the start of the file by the Financial Neutral.

Once the process is established, I have specific tasks as a financial neutral:


  • Creating a listing of assets and debts, which includes tracing their financial history
  • Reviewing tax returns
  • Creating budgets
  • Financial literacy training
  • Building forecasts based on options created by the clients
  • Advising and assistance with separation and divorce tax return planning and filing
  • Assistance with support reviews

So, if you have found yourself reading to here, then consider that your first piece of luck. You may be wondering where to start as you navigate your separation or divorce and you may have been wondering what first step to take.

Contact a Collaborative Professional; talk to a few and find a professional that you trust.  Explain that you are embarking on separating from your spouse and you want a healthy divorce and you’ve been told the best way to do that is use a team of professionals.

You need a mental health professional or Divorce Coach to help you develop options that are in line with the values that drive you forward in life.

You need a lawyer to advise you of the legal rules around separation and divorce and who can also document the separation agreement that you are going to use to navigate your new life post-divorce.

And you need a Financial Specialist to help you figure out where you stand financially at this moment in life and to also give you information about what your future financial situation could look like depending on which options you choose and decisions you make.

07 June 2018

Evaluating the Cost of Family Law Disputes


The Canadian Research Institute for Law and the Family (CRILF) recently released a report entitled "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" by Joanne J. Paetsch, Lorne D. Bertrand, and John-Paul E. Boyd.  Family law lawyers were surveyed for their views on dispute resolution processes, including the processes' costs, duration and perceived efficacy.  The information was used to conduct a Social Return on Investment analysis, which the authors explain is a framework "for measuring and communicating the social, economic or environmental impact of investment in an organization, project or program" (see page two). The report generally shows that Collaborative law and mediation result in less costly and more efficient outcomes that meet the needs of the parties and are in the best interests of the children. This report echoes experiences of members of the Collaborative Divorce Vancouver practice group. 

The Canadian Forum on Civil Justice contracted the CRILF to create the report, and used the report to create an excellent set of infographics that clearly shows the benefits of Collaborative law and mediation. 

A useful tip from my colleague Anna Silver is to provide the report to clients and their spouses, to help them decide which dispute resolution process to use. 

Another report released this spring is the Self-Represented Litigants Project's report by Sandra Shushani and Julie Macfarlane entitled "When Judges see SRLs, Do They See Gender? Observations on Gendered Characterizations in Judgements."  Their blog explains the ways in which they hope this report will help the judiciary when they have self-represented litigants in their courtrooms.



31 May 2018

Yet another reason to stay out of Court....

By
Karen F. Redmond
Family Law Lawyer


If you need a reason to stay out of court, other than fear of emotional damage and financial ruin, here is something you need to read.  In the case of a divorcing couple Ms. Wong and Mr. Li, they provided financial material to the Court in support of their various claims.  The Judge found they had less than satisfactorily reported their income to Canada Revenue Agency.  In a scathing Judgment, Justice Russell said neither party had properly paid income tax for many years, pointing out the "substantial unfairness to the Canadian people who meet their income tax and GST obligations from those who do not."    The Judge went on to say that the parties seemed to have no hesitation in taking the benefits offered by society, while showing no sense of responsibility to contribute towards the cost of those services.  Ms. Wong and Mr. Li had business and personal income reportedly close to $400,000 per year and the Judge made reference to the possibility that CRA may at some point in the future pursue the parties for unpaid taxes.  While somewhat amusing to the reader, this case should give all potential litigants and their counsel pause to consider alternate forms of dispute resolution, before potentially opening the books of your family finances and having them appear on the CBC twitter feed. 


Here is the link to the CBC story: 


http://www.cbc.ca/news/canada/british-columbia/divorce-taxes-court-canada-revenue-1.4664013



22 May 2018

Proposed Changes to Canada's Divorce Act in Bill C-78


On May 22, 2018, Justice Minister Jody Wilson-Raybould announced that the Liberals had just introduced Bill C-78 in the House of Commons, which proposes substantial changes to Canada’s Divorce Act.  Many of the changes echo language and concepts found in BC’s Family Law Act. The government’s press release explains that the bill has four key objectives, which are “to promote the best interests of the child, address family violence, help reduce child poverty, and make Canada’s family justice system more accessible.”  Changes were also proposed to the Family Orders and Agreements Enforcement Act and the Garnishment, Attachment and Pension Diversion Act, to make it easier to enforce family support obligations.  

The summary provided in BillC-78’s First Reading explains that it is meant to do the following:
This enactment amends the Divorce Act to, among other things, 
(a) replace terminology related to custody and access with terminology related to parenting;
(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;
(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
(d) introduce measures to assist the courts in addressing family violence;
(e) establish a framework for the relocation of a child; and
(f) simplify certain processes, including those related to family support obligations. 
The enactment also amends the Family Orders and Agreements Enforcement Assistance Act to, among other things, 
(a) allow the release of information to help obtain and vary a support provision;
(b) expand the release of information to other provincial family justice government entities;
(c) permit the garnishment of federal moneys to recover certain expenses related to family law; and
(d) extend the binding period of a garnishee summons.
The enactment also amends those two Acts to implement 
(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19,1996; and
(b) the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23,2007.
The enactment also amends the Garnishment, Attachment and Pension Diversion Act to, among other things, 
(a) give priority to family support obligations; and
(b) simplify the processes under the Act. 
Finally, this enactment also includes transitional provisions and makes consequential amendments to the Criminal Code.



Collaborative law and mediation are no longer alternative dispute resolution processes. The advantages of these out-of-court settlement processes have been detailed in the Canadian Research Institute for Law and the Family’s recent report “An Evaluation of the Cost of Family Law Disputes: Measuring the CostImplication of Various Dispute Resolution Methods.”  As noted in Bill C-78’s summary, the use of an out-of-court “family dispute resolution process” is encouraged and specifically mentions negotiation, mediation, and Collaborative law.   Under the proposed changes, parties to a proceeding will have a duty to consider the best interests of the child, protect the child from conflict arising from the proceeding to the best of their ability, and to try to resolve the matters through a family dispute resolution process. Legal advisors will have a duty to encourage their clients to attempt to resolve their matter though a family dispute resolution process.  Subject to provincial law, a parenting order may direct parties to attend a family dispute resolution process.  The new terminology does away with "custody" and "access" and instead includes "parenting time" and "decision-making responsibility." The proposed changes confirm that "parenting plans" (often created by the parties with the assistance of Divorce Coaches and Child Specialists in the Collaborative process) may be added to "parenting orders".


Section 16 would be replaced by the following "best interests of the child" section:
Best interests of child 
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration 
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 
Factors to be considered 
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, by giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. 
Factors relating to family violence 
(4) In considering the impact of any family violence under paragraph (3)‍(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor. 
Past conduct 
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
 
There are additional factors regarding what is in the best interests of a child when deciding whether to authorize the relocation of a child. 


The Canadian Bar Association’s statement about the proposed changes was positive. However, it does not seem that Bill C-78 addresses the issues of shared parenting and child support that were raised by the CBA in their December 2017 letter.   Quoting from page three of the CBA’s letter, it is noted that currently, “access to justice for many families is unnecessarily limited, and litigated solutions for child support in shared parenting situations are rarely adjusted in a fair, proportional and economical manner. Parties leaving controlling or abusive situations are especially likely to avoid further contact and conflict with the other parent. The result is that many children and parents are not receiving and paying proper amounts of child support as means and needs change.” Bill C-78’s inclusion of additional methods for enforcing child support is a positive step, but ensuring child support is adequate in shared parenting situations may not have been sufficiently addressed.  As the government has stated that one of its main objectives in Bill C-78 is to help reduce child poverty, this seems like an issue that should be revisited. 

Bill C-78 is a step in the right direction, as changes to the Divorce Act were long overdue. 




Jenny Woodruff, Collaborative Lawyer