News

Think of the Children

When making a parenting order or a contact order, the court must only take into account the “best interest of the child.” But what does this mean?

First and foremost, the child’s physical, emotional, and psychological safety, security, and well-being are given primary consideration. The court wants to ensure that the child is safe and cared for.

Other factors are listed under Section 16.3 of the Divorce Act, such as:

• The child’s needs, based on their age or stage of development;
• The strength of the relationship between the child and each spouse;
• The child’s personal preferences;
• The child’s cultural, linguistic, religious, and/or spiritual heritage;
• History of care with the child; and
• History of family violence, if any.

There are thousand of cases from all across Canada on the topic of “best interests” as that term was used and defined in previous iterations of the Divorce Act. It is unclear at this stage whether courts are going to adopt and continue using the test from these cases, expand upon the test, or create new templates based on the new language in the Act.

To see a more detailed list of the changes, you can visit the Department of Justice website. If you have questions regarding a family law matter, contact our office and book a consultation to speak with one of our lawyers.

On March 1, 2021, substantial changes to the Divorce Act came into force, including changes to the language and substance surrounding parenting orders, changes relating to third-party parenting time, relocation, and other important parenting matters.

Over the next few months, Fogelman Law will offer brief summaries of these important changes and how these changes may impact your family. Each summary will focus on one specific change or amendment at a time.

Words Matter

As of March 1, 2021, the terms “custody” and “access” in the Divorce Act will be replaced with “decision-making responsibility” and “parenting time.” While this change may seem semantic or superficial, the shifts in language are critically important. The language change moves away from the notion of parenting as a right or something to be won or lost, and instead places greater emphasis on the interests of the children. Ultimately, these changes hope to avoid the harmful perception that “custody” battles ultimately produce a winner and a loser.

Accordingly, what were previously known as “orders for custody” and “orders for access” have now been renamed to “parenting orders” and “contact orders,” respectively. Parenting orders under S. 16.1 are available to spouses, parents of the child, and those who stand or intend to stand in the place of a parent.
It is important to note that these changes will only be effective for court orders made after March 1, 2021. Any “custody” and “access orders” made prior to March 1 do not need to be changed at court in order to reflect the new language.

To see a more detailed list of the changes, you can visit the Department of Justice website. If you have questions regarding a family law matter, contact our office and book a consultation to speak with one of our lawyers.

The fundamental difference between litigation and arbitration is that, in arbitration, the parties pay someone to adjudicate their dispute. Despite this added expense, a properly conducted arbitration should work out to be less expensive than litigation. Where arbitration follows mediation, many issues may already be resolved, or at least narrowed to their key points. This means the arbitration can focus on discreet, important issues such as specific parenting or financial matters that aren’t resolved.

Litigation costs are often proportionate to the management of the matter, so the more carefully managed, the lower the costs. An arbitrator can also manage or bypass many statutory pre-trial procedural steps, so time can be used much more efficiently, and focus on the issues that matter to the parties. Arbitration means greater schedule control as well. The court day starts at 10 a.m., with a 30-minute mid-morning break, a 90-minute lunch recess, a 30-minute afternoon break, and ends at 4:30. This means there are four hours working time in the average court day.

An arbitration day can start at 9 a.m., or when the parties want. With a short lunch and fewer, shorter breaks, an arbitration day can deliver as much as eight hours of working time. This means an arbitrator may hear almost double the evidence a court judge would in the same time span. Also, the parties have more control over the schedule and timing of their arbitration. This makes it less likely that a three-day hearing will turn into five days, which also helps control costs.

Arbitration offers process flexibility, so parties can dispense with unnecessary formalities and create a process that works for them. An arbitrator has more latitude than a judge to make the process work specifically for the parties and the matters they care about.

Hearings can be conducted with affidavit evidence and limited cross-examination. The parties can also agree that all evidence be in written form, with the right to make submissions. The final offer selection process – where each party makes their best or final offer, and the arbitrator must pick one without any changes – is a particularly efficient and cost-effective approach for family law arbitration. In this approach, each party strives to be reasonable and realistic, so their offer will be chosen.

When creating a residential schedule, or calculating arrears or retroactive support, the arbitrator’s agreement can give the arbitrator authority to break impasses. The arbitrator can answer procedural questions by phone or email, reducing the number of meetings on minor issues. This also means getting answers on the case’s schedule, not the courts.

The family law court system also includes at least three settlement conference appearances. These court appearances are not required in an arbitration. If each court appearance costs around $5,000, that’s $15,000 which isn’t needed for an arbitration. A conference call or management meeting will take about 90 minutes. There aren’t any documents produced, and you don’t need a brief. The arbitrator just needs to know what the case is about.

Costs are reduced, because the process is streamlined. This makes the case move faster, with fewer process and timing impediments. This is one of the reasons why many clients opt for mediation/arbitration, where mediation is followed by arbitration of matters that weren’t resolved in mediation. It’s an effective one-two punch, with both parties knowing it’s in their best interest to resolve issues, reduce the need for arbitration, and avoid litigation. We discuss the merits and drawbacks of mediation, arbitration, and litigation with our clients, so they understand their options, and have a clear picture of how their case can be resolved.

Herschel Fogelman is the founder and principal of Fogelman Law, a family law firm in Toronto. Herschel is a Best Family Lawyer, and is listed in the Lexpert Directory. An experienced family law mediator, arbitrator, and litigator, Herschel pioneered Customized Case Management, a unique service that streamlines and customizes the processes and schedule in family law cases.

Mediation has become a very popular alternative to litigation in family law matters. More Ontario lawyers use mediation than B.C., Alberta, or Nova Scotia lawyers to resolve disputes, according to Canadian Forum on Civil Justice research. Mediation’s key benefits include the potential to save time and money, and the potential to maintain an amiable relationship following resolution. Litigation can take twice as long and cost twice as much as mediation. Litigation is also more likely to have a ‘winner’ and a ‘loser’ mentality, which can impact relationships afterward.

Clients who take a focused approach to mediation can also get more out of the process. Reaching agreement beforehand on items which aren’t in dispute, and focusing mediation time on issues that aren’t resolved can save time and money.

Litigation doesn’t necessarily cost twice as much as mediation, if the court’s time is used to resolve specific issues. This makes the litigation costs more manageable, because you’re identifying and narrowing the dispute.

Court becomes expensive if it’s used for the sake of it, or to get attention, rather than as a dispute resolution mechanism. Litigation isn’t more or less expensive in and of itself. Litigation is often more expensive because people use it the wrong way. The same can be said of mediation. When clients push the file across the desk and say, “here you go, sort this out,” it increases costs, because we’re now deeply immersed in all aspects of the case.

We advise parties to add structure to their mediation proceedings by narrowing the issues to be mediated as much as possible. Focusing the dispute on specific issues means the procedure to resolve them can be focused as well. This makes it faster and more cost effective, because defined parameters help manage expenses.

Mediation is also good for people on a budget, because they can proceed on a ‘pay-as-you-go’ basis. A mediator is retained, you provide your briefs, and attend for the day. If you reach a settlement, great. If you don’t, you can choose to come back another day, having a good idea how much it will cost.

This expense management element is another key benefit of mediation. If all matters aren’t resolved in mediation, the parties will at least have a better understanding of their challenges, and each other’s positions. In this way, mediation helps focus effort on the most important issues, and ensures all perspectives are heard, outside a win or lose forum.

Herschel Fogelman is the founder and principal of Fogelman Law, a family law firm in Toronto. Herschel is a Best Family Lawyer, and is listed in the Lexpert Directory. An experienced family law mediator, arbitrator, and litigator, Herschel pioneered Customized Case Management, a unique service that streamlines and customizes the processes and schedule in family law cases.

A working spouse needs to consider the impact of retirement on spousal support in their separation agreement. Many support providers assume they’ll be able to reduce or eliminate their support obligations at retirement, based on reduced earning potential. Unfortunately, it’s often not that simple.

This is a conversation to be had upfront and, ideally, the separation agreement would specify that retirement is a change that will affect support. In 1994 The Supreme Court of Canada ruled that, to establish a material change in circumstances, the change must not have been foreseen or foreseeable at the time the agreement was reached. Ontario judges have, in some circumstances, ruled that retirement does not clear that bar.

If you reach a separation agreement at 55, and your employer’s mandatory retirement age is 65, your retirement date isn’t a surprise. This can be interpreted as a foreseeable change and, as such, would have to have been considered in the original agreement. The courts have also ruled that support change applications are premature when the application has been brought in advance of actual retirement. This creates a procedural barrier to resolution, and the applicant must resubmit after retirement.

This issue can even result in supporting spouses being forced to work longer than they want or had planned to continue their payments and fund their own retirement. If a party can‘t pursue a variance in advance of involuntary retirement, it can create significant inequity. Family lawyers need to advise their clients on this issue, and warn them about what is considered unforeseeable change.

The best approach for those who haven’t anticipated retirement in their agreement is to address it two or three years in advance of retirement. This leaves some time to resolve the issue and get ready for an application immediately upon retirement.

Herschel Fogelman is the founder and principal of Fogelman Law, a family law firm in Toronto. Herschel is a Best Family Lawyer, and is listed in the Lexpert Directory. An experienced family law mediator, arbitrator, and litigator, Herschel pioneered Customized Case Management, a unique service that streamlines and customizes the processes and schedule in family law cases.