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New and exciting alternative dispute resolution for divorcing couples?
Alternative dispute resolution instead of going to court
An article appeared in the Woodstock Sentinel-Review recently that showcased a “unique” and “different” way to resolve divorce issues.
The method? Mediation or alternative dispute resolution. It’s actually not new and it’s not unique. It is however, gaining in popularity because it puts both spouses in the “driver’s seat” and helps to reduce the backlog in the Ontario Family Court system by diverting cases that would otherwise go to court because of disagreements between the spouses. In turn, it costs the divorcing couple less money than a heated and time-consuming court battle. It can be an ideal option for divorce in almost any case, with the only real exceptions being situations where domestic abuse is involved.
Alternative dispute resolution with an Ontario family lawyer
Another interesting point with the article was it profiled a business in London that offered mediation and alternative dispute resolution services from someone with a “background in finance” – not a family law professional. While divorce can involve complicated financial issues, it also involves aspects of Ontario family law: child custody, spousal support, division of assets, prior legally-binding arrangements like prenuptial agreements as well as the different issues that apply to common-law marriage. Who would you rather have dealing with your alternative dispute resolution?
Filed in Alternative dispute resolution, Current trends, Divorce, Divorce Lawyer, Mediation •
Will Canadian Family Law Cover Polygamy Divorce?
Polygamy and Canadian Family Law
The polygamy trial in British Columbia has been garnering a lot of media attention.
Polygamy is illegal in Canada, but the law is rarely enforced in the province.
One side is arguing that polygamy puts women and children in danger because some religious organizations may force it, while the other side is arguing that polygamy between consenting adults should be recognized as religious freedom under the Charter of Rights and Freedoms.
Will the polygamy ruling be an inclusive Canadian family law ruling?
If polygamy is decriminalized, it will bring up a lot of questions on how Canadian family law will deal with polygamous relationships upon separation. If there is a ruling that eventually decriminalizes polygamy, will it account for the breakup of a polygamous relationship?
How will assets be divided, particularly if one member of a polygamous relationship leaves while two remain? Would the member that left be able to get spousal or child support (which can be granted in some provinces under Canadian family laws for common law couples) if the remaining two are legally married to each other? If a polygamous triad with children were to breakup, Canadian family law should also be able to grant custody fairly among its members if all of them helped raise a child. Seeing as British Columbia is working on legislation that would allow a child to have more than two legal parents, that legislation may be applicable when ensuring fair and equal child custody for polygamous couples.
Hopefully, no matter what the ruling, consideration is given to developing legislation that would protect all parties involved in a breakup or divorce under Canadian family law.
Insurance for couples who divorce in Ontario?
Insurance for divorce in Ontario
There is always wisdom in taking the extra step to protect yourself. Like a prenuptial agreement, divorce insurance is something couples in Ontario should consider – in case the relationship ends in divorce.
Divorce insurance recently became available in the United States through a company called SafeGuard Corp., where couples can purchase units of coverage to cover divorce costs such as finding a new home and fees. The insurance begins four years after it is taken out to prevent fraud, but there is protection in place for couples who don’t make it that long: they can get their premiums back if they sign a waiver and divorce before four years is up.
The US-based company compares divorce insurance to home insurance, where with home insurance there is a one in 300 chance someone will file a claim, yet it is deemed irresponsible not to have it. With divorce in Ontario at a rate of 38 per cent, there would be more than a one-in-three chance of someone filing a claim if it were available.
Prenuptial agreement vs. insurance during divorce in Ontario
While prenuptial agreements protect both spouses, one key difference with divorce insurance in Canada is that in rare cases a judge can ignore the prenuptial agreement but the divorce insurance is always there. Just recently, Canadian law school professor James Morton told the Vancouver Sun that he predicts divorce insurance will be soon “widely offered” in Canada and it may soon be a viable option for couples who divorce in Ontario.
Filed in Divorce, Marriage Contracts, Prenuptial Agreements •
Ontario Chief Justice expands on family law comments
Earlier this fall, Ontario Chief Justice Warren Winkler said that the Ontario Family Law system was desperately in need of an overhaul, and suggested that mediation become mandatory in divorce disputes before couples head to court.
In recent interview with Law Times magazine, Winkler expanded on these comments, saying that the main reason family law overhaul is so desperately needed is that family law rulings seriously affect the lives of whole families and mistakes can ruin lives, denying parents access to children and creating detrimental repercussions to family relationships.
He said that education and awareness on the family law process is necessary for couples to be successful during mediation, and that those involved need to desire a positive outcome for all parties or it won’t be successful as a solution.
The family court system is extremely strained, and wait times are already too long for heated divorce cases that really need to court system to be processed.
He added, “when we introduced mandatory mediation as part of the civil justice reform, it reduced the waiting time to trial by two-thirds. I’m confident it will reduce the inventory of family law cases and free up judges for trials and I’m sure it will be in the best interests of the parties by making the system better, cheaper and quicker.”
Other provinces are making progress in family law changes, with Alberta recently attempting to change the definition of parent in family law cases to allow for easier custody resolutions with parents who used assisted reproduction methods, and British Columbia attempting to change its family law system to catch up with modern times. However, no province has officially proposed a major family law system reform with regards to how cases go through the court system.
Filed in Divorce, Family Law Changes Ontario, Mediation •
Parliament is back in session: What does this mean for family law?
Canadian Members of Parliament returned to the House of Commons this last week Monday as Parliament resumes for the fall.
CBC News held a poll on their website asking Canadians what the most important issues to them were from a selection of pre-determined categories like the federal long-gun registry, healthcare, Afghan detainee transfers and the mandatory long-form census. Surprisingly, family law reform was not on the list but many of the 2500 Canadians who responded wrote it in themselves saying it should be a top priority.
Family law reform has yet to be touched upon as Parliament has focused on taxes, prisons, the census and the purchasing of $16 billion worth of fighter jets since returning.
Canadian family law reform as a whole is a slow process because it’s unfortunately not a top priority. For example, Bill C-422 is among the top 100 private member’s bills currently after undergoing its first reading over a year ago. This bill deals with mandating equal shared parenting unless it’s not in the best interests of the child, to promote the fact that children benefit from relationships with both their parents and to eliminate parental alienation, amending the Canadian Divorce Act in a very positive way. However, a bill in this position with little attention and support will likely not be debated until next fall. Members of the public can contact their MPs and let them know that this issue is important to them to garner extra support.
A recent review by Ontario’s Law Reform Commission that interviewed social workers, family lawyers, judges and mediators suggested family law reform should definitely be a top priority, and a recent comment by Ontario Chief Justice Warren Winkler also pointed out that creating a mandatory mediation process before family cases go to court would save families unnecessary financial hardship and emotional stress.
Filed in Child Custody in Ontario, Divorce, Family Law Changes Ontario, Mediation, child custody •
Could lessons in Ontario family law before marriage mean less divorce?
A group from the Law Commission of Ontario is suggesting providing engaged couples with lessons in Ontario family law to prevent eventual breakdowns in married relationships in their latest report.
The group has consulted with various family law professionals and determined that the majority of divorced couples wish they knew more about the family law process before they had gotten married.
Julie Lassonde, a research lawyer with the law commission, told the Winnipeg Free Press this week that, “They need more information about what the consequences are of living with someone, what am I getting into if I get married, what are my legal obligations?” She said, “These are all kind of taboo topics, no one wants to talk about the law when they’re in love but it would avoid, we believe, a lot of difficulties at breakdown.”
The group’s report states that offering information sessions before marriage and childbirth may help couples through the integration of family-building and marriage information into high school sexual education classes “to introduce some broad concepts, some ideas, so young people are better equipped to build relationships that make sense to them.”
Filed in Divorce, Family Law Changes Ontario •
More of British Columbia’s progressive family law changes revealed
The family law problems posed by modern life will soon have more clear-cut resolutions as British Columbia plans on tabling the new Family Law Act (the changes’ working title) during the first half of next year.
The 30-year-old Family Relations Act in British Columbia, which is the province’s version of the Ontario Family Law Act, is set to be completely overhauled with new rights for common-law couples and new custody rules to for today’s non-nuclear families.
Separating couples’ time with their children won’t be called access or custody anymore, but “parenting time” or “guardianship”. Families who are constantly in volatile disputes where children are involved will have parenting coordinators that will have the authority to act as an arbitrator, and children conceived by an egg or sperm after the donor parent dies will be seen in the eyes of the law equal to any other child by that particular pairing.
In addition, ex-spouses who act inappropriately can be given conduct orders that result in jail time and fines.
British Columbia’s government consulted with family lawyers, the Canadian Bar Association, as well as the public, in order to come up with the 172-page white paper.
Currently, Ontario does not have similar laws granting common-law couples property rights or custody laws that compare with those that British Columbia is proposing.
Filed in Child Visitation, Common Law Marriage, Divorce, Family Property Division, child custody •
Survey shows more Canadians worried about money than children during divorce
Survey results of a recently released online poll shows that of 2100 Canadians, 2035 (94%) are most concerned about money when it comes to the divorce process. Only a surprising three per cent of respondents said children were their main concern, while 1.3 per cent and 1.2 per cent said emotional impact and legal concerns were what they were worried about, respectively. The survey data was compiled by an Ontario divorce strategy website.
Another end-of-August survey by the Association of Divorce Financial Planners that polled divorce professionals across Canada and the United States determined that the most common reasons for divorce is slowly drifting apart and the end of the child rearing process rather than more emotionally-straining issues like infidelity.
Both of these new surveys can shed light on alternative dispute resolution, a quickly growing method of dealing with divorce issues in a timely and less expensive manner than going to court. One popular method of alternative dispute resolution is collaborative law.
Collaborative law does not involve litigation and instead involves the spouses and their respective lawyers cooperating and negotiating to come to a resolution that benefits and is acceptable to both spouses.
Filed in Collaborative Law, Divorce, Questions and Answers •
Toronto mediation vs. collaborative law
”How long?” and “how much?” are two questions that are often at the forefront of any divorce-oriented thought process, particularly when separating spouses attempt to resolve such issues as property division, child custody, and support. While the financial cost of finalizing a divorce depends on a great number of variables, the emotional costs during a hotly contested dispute can be great, taking its toll on both the parents and the children.
Mediation and collaborative law are two methods of finalizing a divorce without litigation. Mediation involves using a mediator, usually someone with a background in social work, to act as a negotiator between the opposing spouses in order to resolve the outstanding issues. The parties’ respective lawyers are involved in the mediation process and can opt to amend a mediator’s recommendations or the parties’ themselves can make changes to a recommendation.
In contrast, collaborative law involves the separating spouses and their respective lawyers, who are all active participants in the negotiation of the matrimonial issues. Should any of the issues related to the divorce fail to become finalized, the collaborative lawyers are prohibited from representing the spouses in court. Collaborative law is less expensive and time-consuming than litigation.
Filed in Child Custody in Ontario, Child Support, Collaborative Law, Divorce, Family Property Division, Separation Agreements, Spousal Support, Support Orders, child custody •
Green Party vote down motion to decriminalize polygamy
Recently, members of Canada’s Green Party attended a polygamy workshop and brought a motion to decriminalize polygamy that was voted down.
Polygamy is a marriage between multiple consenting adult spouses. Polygamy is not be confused with the various polygamist sects or religious cults such as the one in Bountiful, B.C., where there were accusations of domestic abuse, forced marriage and children being married to adults. This distinction was made very clear at the workshop, according to the Toronto Sun.
According to poly-advocate and Edmonton East Green Party candidate Trey Capnerhurst, issues like those seen in British Columbia should be met with criminal charges, but, “we should not be charging people with polygamy,” she said. According to Canadian criminal law, polygamy can result in up to five years in jail but polygamy itself has not been prosecuted for six decades.
Many Green Party members have stated that polygamy is a human-rights issue, similar to same-sex marriage. A history of polygamy or a polygamist relationship is still on occasion used to deny custody of children in divorce cases.
While geared more towards surrogate parents and sperm donors, British Columbia’s new family law changes that would allow children to have more than two legal parents may leave room for polygamist relationships and increase the rights of polygamist parents, some of which are not biologically related to the child but have strong parent-child bonds and raise the children along with the biological parents.
Filed in Divorce, Polygamy, Same Sex Marriage, child custody •