Services
Separation & Divorce
These Include:
- Parenting Plans – How you will share time with the children, including holidays, and how decisions will be made
- Property – How you and your spouse will share the property acquired during the relationship – property includes bank accounts, real estate, pensions (and other retirement funds) while also accounting for debts
- Child Support – How much each parent will pay for the children’s financial needs
- Spousal Support – whether one spouse will pay to the other financial support
In an out of court settlement process, the resolution of these issues is incorporated into a legally binding separation agreement.
Married spouses that wish a divorce order may take this administrative step on an uncontested basis once there is a signed separation agreement and they have been separated for at least 12 months.
Cohabitation Agreements / Marriage Contracts
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The starting point is understanding how the law addresses the financial issues between married and common law couples (warning: in Ontario, even long-term common law couples do not have automatic rights to property sharing).
Sometimes people have one narrow issue they wish to address (like the home one person is bringing into the relationship); sometimes they wish to include all future financial issues. The concerns are often different for a young couple than they are for an older couple, particularly when one or both may have children from a previous relationship.
The process options are the same as the out-of-court options for separating couples: negotiation, Collaborative and mediation. Financial disclosure and independent legal advice are essential components, regardless of the process.
Once an agreement is reached, it is incorporated into a domestic contract that is legally binding.
Unbundled Services or Limited Scope Retainers
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Examples of when unbundled services may be helpful:
- You wish to deal directly with your spouse (or their lawyer) but want to have advice as the negotiations unfold or assistance preparing a proposal.
- You and your spouse have come to an agreement, but want it properly drafted.
- You want help with one or two issues after having resolved everything else.
- You would love to have “full service” legal help, but do not have the funds.
These partial services are referred to as “unbundled” or “limited scope retainers”.
Independent Legal Advice
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A key component of any agreement, whether arising out of a separation or in the context of beginning a relationship, is for each person to have independent legal advice, a term frequently abbreviated as “ILA”.
Mediation: When parties are negotiating a settlement through mediation, the mediator is a neutral facilitator who cannot provide independent legal advice to either party. Mediating parties are encouraged to have independent legal advice. It can be provided before, during and after the mediation. At the very least, it should be part of finalizing the terms in a written agreement.
When one party has chosen to work with a lawyer to prepare a written agreement and present it to the other (not a recommended process), the party receiving the document should always consult with a lawyer.
When independent legal advice is provided, the lawyers confirm this by signing certificates of independent legal advice that are included in the final written agreement.
Process Options
Collaborative
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It requires both parties’ lawyers to be Collaboratively trained.
The commitment to an out-of-court process is made with a Participation Agreement that is signed by you and your spouse as well as the professionals who will be working with you. It ensures the process is private (unlike a public court process) and that everyone is committed to it.
Where there are children, their wellbeing is prioritized as your family restructures into two homes. Often, the parents work with a parenting professional to draw up a detailed parenting plan that will be incorporated into the separation agreement
The Collaborative process focuses on your goals and priorities. Information about the law is shared while also providing space to craft creative resolutions that recognize your personal situation (along with that of your spouse). Once issues are resolved, the lawyers draft a separation agreement to be reviewed, discussed, and finalized.
Traditional Negotiation
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Communication is done through counsel with letters, emails, and phone calls. Offers may be exchanged in writing. Occasionally, a “4-way” meeting may be arranged or a session with a mediator.
As counsel in this process, I discuss the issues with you and advise you on viable options. I want to understand your priorities to keep them front and centre while advocating for you. When information or proposals are made on your behalf in writing, they are always reviewed and approved by you.
The degree of conflict versus cooperation during the negotiation will be influenced by each spouse’s choice of counsel.
Mediation
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Where communication is reasonably good and the issues are not complex, mediation can offer a cost-effective and timely process for reaching an agreement.
The mediator provides legal information in a neutral fashion and cannot provide legal advice to either of you. Unless counsel is present, each of you will need to express your own goals and concerns. The mediator can ensure both voices are heard but cannot advocate on behalf of either of you.
Because of the mediator’s neutral role, it is important for each of you to have your own lawyer to provide advice – ideally before, as well as during, the mediation. In this way, you will be making informed decisions.
When requested to act as a mediator, my first step is to meet with each of you individually to hear your personal perspectives, assess if mediation is a good fit and, if so, design a process to promote success.
You have brains in your head. You have feet in your shoes. You can steer yourself any direction you choose. You’re on your own. And you know what you know. And YOU are the one who’ll decide where to go…