lorne fine
Is Mediation a good option to resolve the issues arising from my separation?
May 7, 2012 | 
Author There are several reasons why mediation is usually a good option for a resolution of the issues arising from the parties separation, namely, as follows:
1. Cost – The parties will share the cost of the mediation. It is cheaper than each party retaining his/her own lawyers. The parties will not have the bear the cost of numerous letters between their respective lawyers, court appearances etc.
2. Speed – Mediation is much faster than litigation. Court proceedings may last for years. Mediation utilizes a series of meetings (with all parties or just the mediator separately with each party) in order to attempt to arrive at a solution to the parties issues;
3. Control – Unlike court proceedings, in mediation you are not asking a third party to impose a solution to your problems. You are working with the opposing party to arrive at a solution that is mutually agreeable. Since you are working with the other party, mediation is not a recommended dispute resolution system if there is a history of abuse or violence as between the parties.
Mediation is a voluntarily process. A mediator cannot force a resolution to your issues. However, it is usually cheaper and faster and less stressful than the headaches that are usually associated with court proceedings.
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How can I use mediation to resolve the issues arising from my separation?
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 are the different mediation styles?
For any dispute brought to mediation, mediators can approach the mediation using one of the following mediation styles:
Evaluative Mediation – This is when the mediator evaluates your position and voices his/her opinion as to what a judge would do in the circumstances. The mediator then attempts to arrive at a solution that addresses each of the parties legal rights (as opposed to their interests), The parties have less control in arriving at a resolution of this matter;
Facilitative Mediation – The disputing parties maintain control over the process. Unlike Evaluative Mediation, the mediator will not voice his/her opinion as to how to resolve the issues. The mediator searches for underlying interests and facilitates the parties at arriving at options in order to generate a solution to their issues.
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 | No Comments »
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.
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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.
Spousal Support Advisory Guidelines
The Spousal Support Advisory Guidelines are not legislated guidelines. Although they assist lawyers and the courts in determining the appropriate range of spousal support in a case, the SSAG are not binding on a court. A judge has the inherent discretion to determine what he/she considers the appropriate quantum of support. In Fisher v. Fisher, the Ontario Court of Appeal held that the SSAG are a useful tool in assisting the court in determination of spousal support. As a result, SSAG should be referred to when dealing with support in Ontario.
Please feel free to contact us to discuss your spousal support claim or to respond to a spousal support claim.