child support
How can I use mediation to resolve the issues arising from my separation?
May 7, 2012 | 
Author There are several methods of resolving the issues arising from the separation from your partner through mediation. Firstly, you and your partner can retain a mediator to facilitate a resolution of the issues. It is important to note that the mediator will not act as the lawyer for you or your partner. If the Mediator is using an evaluative form of mediation, he/she may advise what he/she thinks that a judge will do, but the Mediator will not give you legal advice. The Mediator will insist that once there is a final resolution on all of the issues and the terms are incorporated into an Agreement, that each party obtain “independent legal advice” to confirm that each party acknowledges their rights and obligations under the Agreement and that they are signing the Agreement voluntarily. Secondly, it is also possible for each party to have his/her lawyer during the mediation and the mediator will act as a neutral third party to try to facilitate a resolution of the issues. If an Agreement is reached, the parties each review the Agreement with their own lawyer. This process is helpful when the parties each have lawyers and require a third experienced party to try to assist them in bridging their differences and thinking of creative solutions to address the interests of both parties.
What is the process of Mediation?
There are usually five stages to mediation:
Stage 1: Introductions
- Mediator introduces themselves and explains the rules for mediation (i.e. act courteous to each other, no arguing, take turns speaking, either party or the mediator can terminate at any time etc.)
Stage 2: Listen and Clarify the Stories
- Mediator asks the parties to present their story and clarifies any of the facts
Stage 3: Clarifying the Problem
- Mediator clearly restates the underlying concerns of each disputant (i.e. “Am I hearing you correctly when I hear you say …) and identifies the issues to be examined
Stage 4: Finding Common Ground
- Mediator asks the parties what they feel needs to happen in order for the conflict to be resolve
- Mediator hears the suggestions that each party makes and asks for their opinions on the suggestions
- Check to see if there is a mutual agreement for a solution. If so, restate it to ensure both understand and agree. Mediator then writes out the final resolution.
- If there is no mutual agreement, Mediator can meet with each party individually and review what they would like to see happen
Stage 5: Final Stage of Mediation
- Mediators check with the parties to see that they understand the agreement
- If there is an Agreement, Mediator may draft the Agreement or Memorandum of Understanding
Posted in child support, common law spouses, divorce lawyer mediation, divorce mediation, Domestic Agreements, lorne fine, separation | 
Tags: determine child support in ontario, divorce, divorce mediation, family lawyer mediation, family mediation, lorne fine, ontario child support, toronto child support, toronto divorce lawyer | 
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What is Mediation?
Mediation is a form of dispute resolution. It is a form of negotiated settlement. A mediator is a neutral third party. He/she will facilitate a resolution of the issues and attempt to arrive at a settlement that works for both parties. Lawyers often say that the “best negotiated settlement is when both parties walk away from the table thinking the other person got the better deal”. If a matter is going to be settled by way of a negotiation, neither party is going to get everything they want. There has to be some “give and take” if there is going to be a settlement. It is important for the parties to be on a “level playing field” (i.e. no history of abuse or violence) and able to express their opinions if the mediation is going to be effective.
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What should I do if I am thinking about separating from my spouse?
The first thing that should be done is become informed. It is incredible how many people have no idea about the financial situation of their family or their spouses. Gather as many documents as possible to substantiate your respective assets and liabilities as of the date of marriage and the date of separation (ie. bank statements, financial statements etc.). You should also make all necessary inquiries and obtain any relevant documents to substantiate your income and the income of your spouse. This is particularly the case when you know that child / spousal support will be an issue.
In preparation of meeting with your lawyer, you should organize all of your documents. It makes things much easier for your lawyer and saves you the expense of having your lawyer trying to decipher and organize your documents. I am always weary of the client that comes to our office with a shopping bag full of documents.
It is also helpful if you write a point form history of your relationship with your spouse. You should cover all important facts in regards to your relationship, including, but not limited to, the financial history (ie. roles assumed during marriage, work history, whether you received any inheritances during the marriage or major gifts etc.), children, etc. It is not necessary to write “War and Peace’. However, a short form history can be very helpful to allow you to gather your thoughts and experiences and give the lawyer information that you may forget during your meeting.
You should then find a lawyer. It is important to find a lawyer that you feel comfortable with. You are going to have to work with this person for some time. You will discuss matters on the phone and trade emails or letters. You will be a team together to resolve this difficult time in your life. There is nothing wrong with interviewing several lawyers. Most lawyers will provide consultations. Once you meet with a lawyer, it will give you a sense if you can work together. It is important to find a lawyer that will do what you want him/her to do. It may be more appropriate to have a lawyer that is a good deal maker as opposed to one who is very aggressive and insists on going to court immediately. On the other hand, your spouse may be very aggressive and it may be necessary to have a lawyer who is able to stand up to your spouse and advance your claims. It depends on your circumstances.
Choosing a lawyer is an important decision. It may have a dramatic impact on how your case will proceed. However, it is important to remember that it is always possible to change lawyers if you are not happy.
The Information herein is provided for information purposes only, is not intended as legal advice, and should not be relied upon as legal advice. If If you have any questions, regarding family or divorce law, please call Lorne Fine at 416-661-2066 or E-mail him at Lfine@Torontodivorcelaw . com.
Posted in child support, divorce, lorne fine, marriage, separation | Tags: child support, divorce, lorne fine, property division, separation, toronto divorce lawyer | No Comments »
Child Support – Sources of Income
According to s.16 of the Federal Child Support Guidelines, in order to determine the quantum of child support, you must first calculate a payor’s total income. The courts have evaluated certain types of “income” and considered whether or not it should be considered in determining the payor’s income:
- he definition of “income” as set out in the Guidelines is very broad;
- non-taxable income (eg. WSIB) is considered “income” and will be grossed up for tax;
-Employment Bonus was included as “income ” for the year in which it was received;
- non-taxable structured settlement payments as a result of a personal injury claim were not considered “income” if the payments were for the cost of personal care and not lost wages, in which case it would be considered “income” for support purposes;
- overtime income is considered “income” for support purposes;
- a one – time severance package (which was a form of replacement income) was considered “income” for support purposes;
- RRSP withdraws used to pay living expenses was considered “income”; and
-bonus, stock options and severance packages are “income” for the purposes of determining support.
Although the definition of “income” as set out in the Federal Child Support Guidelines is broad, feel free to contact us to discuss this issue in depth.
Child Support – When is the Recipient’s income Considered?
We frequently get asked by support payors when is their spouse’s income considered in relation to child support. A recipient’s income is relevant in the following circumstances:
1. In determining the parties respective contributions to the special or extraordinary expenses for the child (ren) – s.7 of the Federal Child Support Guidelines (see blogs herein wrt same);
2. When there is a split custody arrangement - s. 8 of the Federal Child Support Guidelines;
3. When there is a shared custody arrangement – s.9 of the Federal Child Support Guidelines; or
4. When one spouse claims undue hardship pursuant to s.10 of the Federal Child Support Guidelines.
Therefore, the recipient’s income is relevant in the determination of child support in some circumstances. Please feel free to contact us to discuss this issue further.
Determining Income for Child Support – Severance Pay
When one obtains severance pay from his/her employer, it is considered income for the purposes of determining child support. Most payors seem to believe that it is an asset rather than income. This is incorrect. Severance pay is income replacement. As such, it is considered in evaluating child support obligations.
The best approach is to treat the severance pay as being paid for over time for the employer calculated the amount and adjust the amount of child support.
Please feel free to contact us to discuss your child support obligation or your entitlement to child support.
Financial Disclosure
There is a recent decision of the Alberta Court of Appeal, Webb v. Birkett, wherein the court held that Family Law Lawyers, whether engaged in mediation, the collaborative law process, or any other process, has a duty to obtain full and complete financial disclosure, unless the client, being properly informed, waives the requirement.
The Court of Appeal held that it is the duty of every lawyer in a family law case to do the followingL
- obtain reliable information to be able to ascertain what the client would likely receive or have to pay for spousal support, child support or property division and to advise the client;
- to discuss the options of settlement with a client, to discuss whether a settlement is reasonable, and to evaluate a settlement in comparison to other options;
-if a client is willing to settle without full disclosure from the other side, and therefore, may be accepting less or paying more than they would be required to pay by law, if possible, to advise the client as to what might be lost or paid. (ref – Family Law Newsletter, April 19, 2011, Epstein’s This Week in Family Law)
Therefore, although clients do not like to go through the process of obtaining financial disclosure to provide to the other side or evaluating financial disclosure received from the other side, it is an important part of the process and is necessary for any lawyer that does not want to be negligent. However, it is ultimately the client’s decision if he/she wishes to resolve their matter without some or all of the financial disclosure. He/she should ensure that he/she is making an informed decision and will not regret his/her decision years down the road for not obtaining full disclosure.
Feel free to contact us to discuss the issue of disclosure in regards to your support or property claims.
Posted in child support, divorce, lorne fine, Property Division, spousal support | Tags: child support, determine child support in ontario, divorce, lorne fine, ontario child support, property division, Separation Agreements, spousal support, support guidelines, toronto child support, toronto divorce lawyer | No Comments »
How to deal with your Lawyer
It is important to remember these points when dealing with your lawyer in your Family/Divorce matter:
1. Always be Child focused and think of the future of your family. It will likely save you money;
2.You hire your Lawyer to assist you in your matter. You want the best possible results at a reasonable costs. Remember to stay focused on the “big picture” (ie. custody/access, child/spousal support and property division). Do not get hung up on the small details that may not have any impact on the “big picture”. The longer you argue, the more it costs;
3. You want your Lawyer to be objective and not involved emotionally;
4. Your Lawyer is not a psychiatrist / psychologist;
5. Your Lawyer has many clients that all need his/her attention. It is important to recognize that your lawyer may have time constraints in other matters;
6. When your Lawyer asks for documentation or informatiom, it is in your interest to provide him/her with same asap;
7. Be involved in your case and assist the lawyer as much as possible. It is always helpful to provide your Lawyer with an organized document brief and a history of your matter or important facts with respect to your case;
These important points can save you time and money and lead to a “successful divorce”.
Please call us if you require any assistance.
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How to Prepare for your Separation/Divorce
In some of our cases, the parties separation has been “brewing” for quite some time. One or both parties may think about separating from their spouse, but they do not approach a lawyer. He/she may be preparing emotionally and financially to separate from his/her spouse. In other cases, a spouse may be surprised to learn that his/her spouse wants to separate. It comes as a complete surprise. They then come to our office and have no idea where to begin or how to deal with their situation. In both cases, when there are property or support issues, you must prepare to deal with same in the following manner:
1. Prepare a list of all assets and liabilities as of the date of marriage and the date of separation. Gather all of the documents to substantiate your figures. If there are any assets that were inherited or received as a gift during the marriage, it is important to provide documentation to substantiate the gift/inheritance and tracing of the gift/inheritance to the date of separation;
2.Do not leave the Matrimonial Home without first discussing the ramifications of leaving the house with your lawyer. It is very possible that leaving the house will have a detrimental impact on the sale of the house and any custody/access issues;
3. Do not incur any debts or allow your spouse to incur any large debts prior to the separation. You want to be able to have sufficient funds to finance any potential litigation. In addition, you do not want your spouse to incur any joint debts that you be held liable for. You do not want your spouse to deplete your equity in your residence by utilizing a joint secured line of credit or deplete their net worth. It may be necessary to cancel joint credit cards and joint lines of credit;
4. If your house is jointly owned, you may want to consider “severing the joint tenancy”. If you own the house as joint tenants with your spouse, and one person dies, the other person will automatically receive the entire house regardless of the terms of any Will. However, your lawyer can prepare documents in order to “sever the joint tenancy” . Each party would then own the house as tenants in common. Therefore, if you died prior to the resolution of your matter, your estate could deal with your interest in the house and it would not automatically vest in your spouse;
5. You may want to consider changing any beneficiary designations on your RRSPs, life insurance, etc. If your spouse is a beneficiary, and you die, he/she would receive the benefit of this asset, notwithstanding that it may be your intention due to your separation;
6. Save your money. A separation/divorce will have financial consequences. You should have a financial cushion to assist you in coping with any monetary issues;
7. Investigate your spouse/partner’s financial situation. Gather as many documents that you can find to substantiate your allegations (financial or otherwise). Copy all documents. Keep a journal/notes. It may assist you if there are future court proceedings;
8. Make sure that your spouse/partner does not have access to your email or mail received at your shared residence. It is important that any discussions that you have with your lawyer be on a strictly confidential basis;
9. If there are children involved, you should maintain the status quo (with respect to caregiving) or, better yet, become more involved with the kids.
Please feel free to contact Mr. Fine to discuss your family situation.
Posted in child support, common law spouses, divorce, lorne fine, marriage, Property Division, spousal support | Tags: child support, child support guidelines, determine child support in ontario, divorce, lorne fine, ontario child support, property division, separation, Separation Agreements, support guidelines, toronto child support, toronto divorce lawyer | No Comments »