Photo from Pixabay.

It’s not unusual for someone to come see me and have some misconceptions about how the law or the legal process works. Previous articles and columns in LawNow have addressed many of these misconceptions. In this article, I’ll address a few others.

1. I can trade “parental rights” for the obligation to pay child support.

Some parents suggest that the other parent give up their “parental rights” in exchange for not having to pay child support. By “parental rights”, they usually mean the rights, responsibilities and entitlements of guardianship and parenting time with the child. This exchange might seem practical in some cases, but it is not in line with the law.

A child has a right to benefit from child support regardless of their relationship with their parents. Even if the child does not have a relationship with one parent, or if that parent is no longer a guardian, the parent should still financially support the child based on the parent’s income.

And a child has the right to have a relationship with both of their parents, along as it is in their best interests and regardless of whether or not that parent pays child support.

Parents cannot bargain away their child support or purchase their relationships. Some parents agree to this. However, it’s very unlikely that a judge would enforce this kind of agreement.

For more information related to child support, see Part One and Part Two of LawNow’s “Brief Primer on Child Support”.

2. My child can decide where they want to live when they are 12 years old.

Often parents what to know when their child can decide which parent they want to live with. Many have heard that this happens when the child reaches the age of 12. Family lawyers often refer to this as the “Myth of 12”.

Children do not have the legal authority to decide where they live until they are adults. In Alberta, this occurs when they are 18 years old. Children do not have the ability to decide if they go to school, if they can eat their vegetables, if they can go on dates or if they can wear make-up. In the same way, they do not get to make such a major life-changing decision as who they want to live with.

Children do not have the legal authority to decide where they live until they are adults.As children get older, they develop the ability to make better decisions for themselves. Parents start to give children more independence and decision-making powers in line with their level of maturity. In the same way, children’s views have more weight as they age. If they have strong views, a judge may want to know what those views are and what might be influencing those views. However, children don’t have the authority to make a final decision. Their views are only part of the assessment about what is in their best interests.

Some parents will choose to empower their children to make this decision. Most psychologists who work with children and parents will caution against this. If you empower your child to make the decision of where they live, they will likely feel empowered to make other major decisions. This erodes the important roles of parent and child. And this can often backfire against the parent who empowers their child in this way: if they can choose to live with you, they can also choose to not live with you when you do something they don’t like.

3. We have to be separated for one year before we can file for divorce.

In Canada, you are eligible for a divorce if there has been a “breakdown of your marriage”. There are three ways to show a breakdown:

1. living separate and apart for at least one year;
2. the other person has committed adultery; or
3. the other person has treated you with physical or mental cruelty so that it is intolerable to continue to live together.

The vast majority of people (95% in most recent data available) get divorced based on being separated for a year. Even in cases of adultery or abuse, many people find it simpler to use separation as the basis of the divorce.

“Living separate and apart” does not have to mean living in separate houses. Many people decide that they no longer want to live as a married couple but choose to live in the same house (for example, because of finances). However, it is important for the former couple to act in a way that is consistent with this intention to be separated. For example, they do not sleep together, they no longer combine finances and they do not do chores for each other, etc. As long as at least one of the spouses has decided and communicated that they want to live separately and follows through with their actions, the spouses are separated.

“Living separate and apart” does not have to mean living in separate houses.Often, settling a divorce involves more than just the divorce itself. It also involves settling parenting and support (the Divorce Act refers to this as “corollary relief”) and dividing property. You can deal with these other issues in the same court action. Many couples cannot wait for one year to address these other issues. So, you can start the divorce action and you can deal with these other issues on an interim (temporary) basis before you have been separated for one year. You can start the divorce process by filing a Statement of Claim for Divorce at any time after the separation has occurred. You will have to wait one year for the court to grant the Divorce Judgment and Certificate. You cannot remarry until you receive these documents.

Most divorces do not require going to court, as people are able to settle all the issue themselves. In these cases, filing a Statement of Claim for Divorce to get the Divorce Judgment and Certificate is straightforward and uncontentious.

4. If I don’t have a lawyer, I can’t talk to the other person’s lawyer.

Many people are unable to, and some people choose not to, hire a lawyer to help with their family law matters. We refer to people without lawyers as “self-represented”. They are their own lawyer.

When the other person has hired a lawyer, many self-represented people avoid talking to that lawyer. This is often counter-productive. Most family law matters settle. But you can only settle a matter if you communicate! Self-represented people should communicate how they propose to resolve the dispute.

… communicating with the other person’s lawyer can save time and money.Also, communicating with the other person’s lawyer can save time and money. For example, if a lawyer schedules a court application on a certain date, a self-represented opposing party should let the lawyer know in advance if they will be asking for an adjournment of the application. The lawyer may agree beforehand so that the application can be adjourned online or via letter to the court. In this case, both parties can avoid going to court on the originally scheduled day. If you don’t communicate in advance or try to work out an agreement and then you are not successful in court, the judge can award costs against you for failing to try to work things out.

Many lawyers prefer to communicate with self-represented people in writing so that there are no misunderstandings of what was said. This is a good idea for both the lawyer and the self-represented person.

The National Self-Represented Litigants Project has resources for self-represented litigants on its website.

5. I can call the police about any kind of family law dispute.

You should call the police if you believe a crime has been, or will be, committed or if you fear for your immediate safety. However, many people involved in family law disputes will call the police even when a crime is not being committed. This is usually not an effective use of police services.

For example, where parents are separated but don’t have a Parenting Order in place, the police cannot determine which parent should have parenting time at any given moment. The police do not have the power or training to make decisions about what parenting arrangement is in a child’s best interests. That task is left to the parents themselves, or a judge.

Even in cases where there is a Parenting Order, the police will usually not get involved in enforcing that order unless there is a “police enforcement clause” in the order. If there is a police enforcement clause, the police must do what they can to ensure the parents follow the order. Parents should use these clauses only when absolutely necessary. Many judges do not like police enforcement clauses as they can heighten conflict between parents or teach children that parenting time is frightening. However, these clauses are sometimes necessary when one parent refuses to follow a court order.

Another example: where a couple is fighting about who should live in the family home, the police cannot decide for them. That is, unless a crime has been, or will be, committed. In cases of reported family violence, the police may assist in separating the couple for a short period or a judge might order one person not to return to the home. However, in the absence of a crime, or suspected crime, both people have property rights to the home and the police do not have the power or training to make decisions about property division. Again, that task is left to the parents themselves, or a judge.

Conclusion

There are many misconceptions out there about the law and legal processes in family disputes. It’s best to turn to a lawyer for advice about your specific situation. Many lawyers offer consultations and ongoing coaching to clarify the law and process. Various legal clinics offer these services to low-income individuals. Online resources offer a varying level of accuracy – look for reliable sources such as Legal FAQs, LawCentral or other CPLEA resources.

Photo from Pixabay

Since the introduction of the Federal Child Support Guidelines (FCSG) in 1997, custody arrangements have affected child support obligations for Canadian parents. The greatest flexibility applies to “shared custody” situations. Under the FCSG, a child is in shared custody where each parent “exercises a right of access to, or has physical custody of” the child at least 40% of the time over the course of a year.

Sharing the Income Tax Benefits

As is often the case, the Income Tax Act (ITA) was slow to catch up with developments in the child support rules. Before July 2011, only one parent could receive benefits such as the Canada Child Tax Benefit (now the Canada Child Benefit), the Universal Child Care Benefit (now repealed) and additional credits for children under programs such as the GST/HST credit.

In some cases, CRA permitted parents in shared custody arrangements to alternate which of them would receive these benefits over the course of the year. In other cases, the parents agreed on which of them would claim these benefits. As many were, and are, income-tested, directing all benefits to the lower-income parent often resulted in the family receiving significantly greater total benefits for a child.

Effective July 2011, the ITA caught up. It provided that each “shared-custody parent” would be entitled to 50% of the child-related benefits they would have been eligible for had the child been in their sole custody. However, the ITA did not adopt the FCSG definition of “shared custody”. Instead the ITA required that:

• the parents “reside with the qualified dependant on an equal or near-equal basis”, and
• each parent “primarily fulfil the responsibility for the care and upbringing of the qualified dependant when residing with the qualified dependant”.

Typically, the “qualified dependant” is a child, but the term can also apply to other dependants.

The issue here is what “equal or near-equal basis” means.

Canada Revenue Agency

The Canada Revenue Agency (CRA) interpreted the term “equal or near-equal” consistently with the FCSG, although their publications did not refer to percentages. One example provided was a child residing with one parent three days a week and the other four days a week (so about 43% and 57%). Many people assumed that the same 40% minimum time applied for these purposes, and that basis seemed to be adopted in some Tax Court cases. No Tax Court decision accepted a percentage less than 40% as meeting the requirements for “shared custody”.

Federal Court of Appeal

However, in two decisions released on March 27, 2019 (Lavrinenko v The Queen, 2019 FCA 51 and Morrissey v The Queen, 2019 FCA 56), the Federal Court of Appeal ruled that the ITA definition was not the same as the FCSG. Rather, the Court concluded that the ITA required a more equal basis, while acknowledging that a precise quantification was not realistic. The Court’s analysis suggested that equal or near-equal custody required that the child reside with each parent at least 45% of the time.

This created significant uncertainty. Parents with custody arrangements meeting the FCSG test (40% minimum) had relied on that rule also applying to benefit entitlements and, in some cases, had created child support agreements relying on sharing these benefits.

Department of Finance

On August 29, 2019, the Department of Finance released draft legislation amending the ITA’s definition of “shared-custody parent” to align the ITA rules with the FCSG rules. It set the minimum requirement at 40% custody by each parent. The proposed legislation also allows for parents to reside with the child on an “approximately equal basis”. This was stated to provide flexibility where the child generally resides with each parent in the 40% to 60% range and the parents try to reside with the child on as near an equal basis as possible, but this does not occur in a particular month due to unusual circumstances.  Examples such as illness or summer vacation schedules causing a split of 38% to 62% in a particular month were provided.

The ability to split benefits related to children does not extend to credits for an “eligible dependant” for income tax purposes.The proposal’s stated intent is to ensure that CRA’s current administrative practice is supported in law, with no change to the benefit payments any family is currently receiving in accordance with CRA’s interpretations.

Of course, the government was not in session when this draft legislation was released and was, at the time this article was written, engaged in an election campaign. The draft legislation is to be retroactive to July 2011 – the start of the ability to split these benefits between shared-custody parents. Hopefully, the legislation will be implemented in the fairly near future.

Dependant Claims

The ability to split benefits related to children does not extend to credits for an “eligible dependant” for income tax purposes. The child of a single parent is a common individual for whom this credit is available. The credit requires the taxpayer meet the following criteria at some time in the taxation year:

• be unmarried (including common-law partnerships) or be separated (the taxpayer and their spouse or common-law partner neither live together nor support each other); and
• maintain a “self-contained domestic establishment” (e.g. a house or apartment) where the taxpayer supports a dependant (various relatives, including a child under the age of 18, can qualify) who is dependent on the taxpayer for support.

Because the tests can be met at any time in the year, the credit is available in the year of separation.

This credit is indexed for inflation, reduced based on the income of the dependant, and can save over $1,800 of federal taxes in 2019. All provinces have analogous provincial credits. The Alberta credit can save over $1,900 of provincial taxes in 2019.

For shared custody arrangements, both parents would normally qualify to claim each child. However, two restrictions can cause issues:

1. Only one person can claim a specific dependant. Where two or more taxpayers eligible to claim a specific dependant cannot agree on who will receive the credit, it is denied to all of them. It is not possible to split this claim – one parent must claim the full amount. Parents with more than one child could each claim a different child.
2. A taxpayer cannot claim a dependant for whom they are required to pay a support amount. Basically, this prevents the parent required to pay child support from claiming any of the children for whom support is payable. However, if neither parent would be permitted to claim the child because of this restriction, the restriction does not apply and either parent is permitted to claim the child. In other words, if each parent is required to pay child support to the other at some time in the year, for the same child, either may claim that child as an eligible dependant, provided the other criteria are met.

For shared custody arrangements, the FCSG provides that child support is determined by computing the support each parent would be required to pay if the other parent had sole custody of the child. These amounts are then set off against one another. For example, if the children’s mother would be required to pay $1,500 of monthly support to their father if he had sole custody, and the father would be required to pay $1,000 of monthly support if the children’s mother had sole custody, typically the mother would be required to pay $500 per month. Some parents have argued that this computation means that both parents are required to pay support, so either can claim the child (or each may claim one child when there are two or more).

On August 29, 2019, the Department of Finance released draft legislation amending the ITA’s definition of “shared-custody parent” to align the ITA rules with the FCSG rules.The Tax Court has generally held that only the parent required to make a payment (the mother, in the example above) is required to pay support. As such, only the parent receiving support payments may claim the eligible dependant credit for any of the children. In some cases, where the support amounts are different from the FCSG amounts, the Tax Court has ruled that both parents are required to pay child support, so either may claim credits for the children. For example, in a 2017 Tax Court decision (Lawson vs. The Queen, 2017 TCC 131), the FCSG amounts payable by the taxpayer to his former spouse were set off against support payments required from the former spouse in respect of travel costs incurred by the taxpayer in order to facilitate the shared custody arrangement. The courts look closely at the terms of the support obligation in making such determinations.

Claims that both parents are required to pay support typically attract CRA scrutiny. A Tax Court appeal may be required to permit each parent to claim credits for one child where CRA does not consider that each parent is required to pay support.

Conclusion

Availability of income tax benefits for children of former spouses can become complex. The above addresses only a few commonly available tax benefits. These issues should be considered in negotiating arrangements between the parents to avoid future disputes. Unfortunately, this often requires additional professional advice, adding further costs and stress to an already unfortunate situation.

Two big changes to the legislation on family law are coming next year: one that’s important if you live in Alberta and another that’s important if you’re getting divorced no matter where you live in Canada.

Canada’s Divorce Act

The federal Divorce Act applies to married couples who are separating and want to get divorced. The Act is getting a pretty thorough overhaul that takes effect on 1 July 2020. The most important changes involve the language the Act uses to talk about the care of children after separation, how the court addresses family violence and what happens when someone wants to move away after separating.

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Parenting after separation

The current Divorce Act talks about the care of children in terms of custody and access. Custody is mostly about how spouses make decisions about their children. Someone with “sole custody” has the right to make these decisions without consulting the other spouse. When spouses have “joint custody”, they both have the right to make these decisions and usually have to talk to each other first. Access is about how the children’s time between the spouses’ homes is scheduled and usually refers to the children’s schedule with the spouse who has the least amount of time with them.

On 1 July 2020, however, the Divorce Act will start talking about decision-making responsibility, parenting time and contact.

Decision-making responsibility means a spouse’s duty to make important decisions about their child’s life, including about the child’s health, education, culture, language and extracurricular activities. Under section 16.3 of the Act, decision-making responsibilities can be shared between spouses or allocated to just one spouse. Most of the time, I expect, spouses will share decision-making responsibilities. The circumstances that might justify an order for sole custody under the current Act will justify the allocation of decision-making responsibility to just one spouse.

Parenting time means the time a child is in the care of a spouse. Each spouse has the sole authority to make day-to-day decisions affecting their child during their parenting time. Contact, on the other hand, means the time someone who isn’t a spouse has with a child, including grandparents and other important adults in the child’s life. People with contact do not have the right to make day-to-day decisions affecting the child.

Spouses can make parenting plans describing their agreement about how they will share decision-making responsibilities and parenting time, and about who can have contact with their child. The court will make parenting orders on these subjects if spouses can’t agree.

The best interests of the child

On 1 July 2020, … the Divorce Act will start talking about decision-making responsibility, parenting time and contact.The best interests of the child are the only consideration the court may take into account when making a parenting order, just as the best interests of the child are the only consideration when the court makes orders about custody and access under the current Divorce Act. Starting 1 July 2020, the court will have a long list of factors to take into account when deciding what is in a child’s best interests. These factors include:

1. the nature of the child’s relationships with each spouse, with siblings and with other important people in the child’s life;
2. each spouse’s willingness to encourage the child’s relationship with the other spouse;
3. the child’s views and preferences;
4. the child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
5. the ability of each spouse to care for the child;
6. the presence of any civil or criminal court actions and orders that are relevant to the wellbeing of the child; and
7. the presence of family violence.

When considering these factors, the court must give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

Family violence

Where family violence is an issue, the best interests of the child factors require the court to think about how the violence affects the ability and willingness of a spouse to care for the child. The court must also think about the appropriateness of making a parenting order that would require the spouses to cooperate with each other.

The court must also consider a list of other factors, which include:

1. the nature, seriousness and frequency of the family violence;
2. whether the family violence indicates a pattern of coercive and controlling behaviour;
3. whether the violence was directed to the child or the child was indirectly exposed to the violence;
4. the risk of physical, emotional and psychological harm to the child; and
5. any steps taken by the person committing the violence to prevent future violence and improve their ability to care for the child.

Moving with or without a child

Beginning on 1 July 2020, the Divorce Act will have new rules about what happens when someone wants to move away, with or without a child. If a spouse wants to move only a short distance away, the spouse will be required to give written notice to anyone who has parenting time, decision-making responsibility or contact with the child. The notice must state the date when the move will happen and the address of the new home. However, the rules change if the spouse wants to “relocate.”

The federal Divorce Act applies to married couples who are separating and want to get divorced.Under the updated Act, relocation means a change in the home of a child or a person with parenting time or decision-making responsibility that will have a significant impact on the child’s relationship with someone who has parenting time, decision-making responsibility or contact. When a move qualifies as a relocation, the person who wants to move must give 60 days’ notice of their intention to move to anyone who has parenting time, decision-making responsibility or contact with the child. The notice must say when the move will happen, the address of the new home and contain a proposal about how parenting time, decision-making responsibility or contact will work after the move.

After receiving notice of a relocation, someone with parenting time or decision-making responsibility has 30 days to object to the relocation. It’s important to know that:

1. the relocation can happen if the court approves the move;
2. the relocation can happen if someone with parenting time or decision-making responsibility fails to object to the move; and
3. people with contact don’t have the right to object to a relocation.

When someone objects to a relocation, the court must consider the best interests of the child and a list of other factors, including:

1. the reasons for the move;
2. the impact of the move on the child;
3. whether there is a court order, an arbitrator’s award or an agreement between the spouses that restricts where the child can live; and
4. the reasonableness of the proposal about how parenting time, decision-making responsibility or contact will work after the move.

The court cannot think about whether the person who wants to move would still move if they could not take the child with them.

The court can waive the requirement to give notice of moves that do and do not qualify as relocations if there is family violence.

Resolving problems outside of court

The updated Divorce Act will also encourage people to resolve disputes about parenting after separation, child support and spousal support out of court. Options for resolving disagreements outside court include negotiation, mediation and collaborative negotiation.

Lawyers will also be required to encourage their clients to resolve their disagreements outside court.

Legal advice about the changes

It is important to speak to a lawyer to get legal advice if you think that any of the changes to the Divorce Act might affect you. This is especially true if you have a court case under the Divorce Act that won’t be wrapped up by 1 July 2020 (when the changes take effect) or if you might be dealing with a problem that qualifies as a relocation.

You can get more information about the changes to the Divorce Act from the Department of Justice, including the explainer prepared by the Department for Parliament. You can also read a more technical overview of the bill changing the Divorce Act (“A Brief Overview of Bill C-78”) from the library available on my website.

Remember that the changes to the Divorce Act only apply to married couples who are separating and want to get divorced!

Alberta’s Family Property Act

Alberta’s Matrimonial Property Act also applies only to married couples, but that’s all going to change on 1 January 2020 when the Act will be renamed as the Family Property Act.

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When these changes become law, the new Family Property Act will apply to married couples as well as unmarried couples who qualify as “adult interdependent partners.” This is a really important change because currently only spouses can use the Act to figure out how property should be divided when they separate. People in unmarried relationships have to rely on the rules of equity and the common law to get an interest in property owned by the other person, and the results of those rules are always hard to predict. The results of claims under the Family Property Act, on the other hand, are much easier to figure out and are more easily resolved without having to go to court.

Under the Adult Interdependent Relationships Act, an adult interdependent partner is someone who has:

1. lived with someone else in a “relationship of interdependence” for at least three years;
2. lived with someone else in the same kind of relationship for less than three years if they have had a child together; or
3. signed an adult interdependent partner agreement with someone else.

The Act says that a relationship of interdependence exists when two people share each other’s lives, are emotionally committed to each other and work together as an economic and domestic team. (This way, people who are roommates never need to worry about becoming adult interdependent partners!) People more commonly describe adult interdependent partners as “common-law” spouses, even though they’re not legally married.

Who is affected by the change?

What’s even more significant about this change is that it will apply to everyone who qualifies as an adult interdependent partner on 1 January 2020, whether they want it to or not.

Because of the big differences currently in property rights between married couples and unmarried couples, some people decide to avoid getting married in order to avoid having to share their property after separation the way married couples do. However, if you are in an adult interdependent relationship on 1 January 2020, or enter one after that date, the Family Property Act will apply to divide your property if your relationship ends.

Dividing property

In Alberta, the property a couple owns when they separate is broken down into three groups.

First, there’s the property that you get to keep for yourself, which includes the property you brought into the relationship and some kinds of property you might get during the relationship (including gifts from other people, inheritances and court awards). Someone who brought property into the relationship gets to keep the value of that property at the date the relationship began. Someone who gets a gift, an inheritance or a court award during the relationship gets to keep the value of that property on the date it was received.

… if you are in an adult interdependent relationship on 1 January 2020, or enter one after that date, the Family Property Act will apply to divide your property if your relationship ends.Next, there’s the property that the couple shares in some way, although not necessarily equally. This includes the increase in the value of property brought into the relationship and the increase in the value of any gifts, inheritances and court awards that were received during the relationship. It also includes new property acquired from the sale of this property as well as gifts received from the other person.

Finally, there’s the property that the couple are presumed to share more or less equally. This is all of the other property that the couple acquired during the relationship and is usually property acquired from employment income.

Even though this seems complicated, the law about how these different groups of property are shared – and not shared – is well understood by lawyers and judges. (In a nutshell, you get to keep the value of what you bring into a relationship and have to share the increase in value of that property as well as the new things you get during the relationship.) This will make dividing property between unmarried people much easier than how the rules of equity and the common law currently work.

Legal advice about the changes

It is important to speak to a lawyer to get legal advice if you think that any of the changes to the Family Property Act might affect you, especially if you are, or are going to be, living in an adult interdependent relationship when the law changes on 1 January 2020. You should think about asking a lawyer about a cohabitation agreement, also called a living-together agreement, which might help you control the impact of the new plan for dividing property between adult interdependent partners.

You can get more information about the changes to the Family Property Act from Alberta’s Ministry of Justice. You can also read a more technical overview of the bill changing the Matrimonial Property Act (“A Brief Overview of Bill 28”) from the library available on my website.

Never have I ever: set out to engage in high-conflict family litigation. And when I say high-conflict, I mean cases where the parties can’t put their own emotions aside to make good decisions for themselves and their children. Somehow, though, it finds me. Time and again I have tried to minimize the conflict and look to the parties’ broad goals to try to find alignment. On many files this, along with an exchange of voluntary financial disclosure, leads to an amicable resolution. Unfortunately, however, for a few cases this does not work. I am discussing these cases here.

My goal is not to break the family apart but to help the members rise to the occasion and turn their family into a restructured whole – albeit with some new holes.One might ask: why would anyone, ever, want to do this sort of work? The short answer is: if not me, then who? In other words, if I turn away tough work, will the parties end up with counsel who are less empathetic or realistic (or without counsel entirely)? Will they end up in a worse tangle two years from now because they (or their lawyers) have not addressed tensions? Or will they struggle to resolve the dispute using a civilized mechanism and instead resort to “self-help” remedies, such as absconding with children or scuffling with the opposing party? Possibly. Which is why I do my best to address the conflict myself, as efficiently as possible, and in the best venue that I can persuade the parties to attend. Despite taking on these files, I avoid trials like the plague and assume that even on the most challenging matters the parties will not require a trial.

Why do I avoid trials? They are bad for families. No Mom or Dad should ever have to sit through a day of being cross-examined on the stand about their parenting habits only to go home and make supper for their children, see to their homework and tuck them into bed as if nothing is going on. Realistically, no parent is super-human enough to do so. The tension, stress and exhaustion will of course trickle in to the rest of the parent’s activities. The result – the children are disrupted (at best) or damaged (at worst). It is beyond counter-productive to engage in damaging proceedings which are not in the child’s best interests while simultaneously arguing about the child’s best interests. As the kids say: “I can’t even!” Luckily, there is a better way.

Swiss Cheese

If not trials, how do we get people who cannot agree that the sky is blue to settle their file? My approach is what I call the “Swiss cheese” method. A high school science teacher explained it as a way to tackle mounds of homework that seemed overwhelming: rather than worrying about getting it ALL done, worry about making holes in it that gradually reduce the to-do list. The fact is that often in family law files there can never be an “end.” Children grow and change, finances change, retirements arrive, health problems crop up, etc.

Hole 1 – Triage: Stop the Hemorrhaging

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You know that you have what will likely be a high-conflict file when a court order is necessary right off the bat, possibly on a without notice basis. While going to court out of the gate is not ideal for settling the entire file amicably, there are times when the needs outweigh this drawback:

• There is domestic violence, and a separation is not possible without an order for financial support, exclusive possession of the home or a protection order.
• A child has been removed from the city or province and must be returned.
• A child is in danger.
• A party is at risk of homelessness.
• A parent has been denied access to a child for a prolonged period, and the parent-child bond is in jeopardy.
• A partner is intentionally running their business into the ground.
• A partner is gambling or otherwise depleting funds or running up debts.
• A partner has stopped paying the mortgage all of a sudden.

The court can usually deal with these issues in isolation by granting an interim without prejudice order in regular chambers. An interim order provides short-term remedies that get the parties to a position where they can begin to tackle the bigger picture.

Hole 2 – Strategy and Case Building

Now that the client can begin to see the forest and not only the trees, we assess the file in its totality. The challenge at this point is to transition from disaster control to long-term outlook. It is usually advantageous to rally the troops (engage experts) and make a litigation or other resolution plan. Would a psychological intervention be helpful? What do we need to properly calculate incomes and property division? Are the parties agreeable to resolving some or all of the issues using mediation or arbitration? Would therapy or parenting co-ordination help to transition the parties out of an antagonistic cycle? Or would court processes be more effective, such as an Early Intervention Case Conference, case management, Questioning or a special chambers hearing? Is this file well-suited to a Judicial Dispute Resolution (“JDR”)? Which issues should we address first? Once I have a plan with prioritized issues and action items that my client is happy with, then we work on the next hole.

Hole 2.0 – Coaching and Teamwork

Simultaneously, and throughout the matter, I coach my client to communicate with their ex, to help me build a strong case, to make daily choices that will aid in a favourable outcome, and to work with me as a team member. This cooperation makes my services efficient and cost effective. In particular, I begin coaching my client on how to communicate with a combative individual. Big life changes are sometimes necessary. Perhaps they need to change or seek employment, move homes, pursue vocational training, improve parenting methods, seek mental health treatment or simply start documenting everything relevant. I recently had a case where I resolved the entire matter for almost $10,000 less than I initially budgeted thanks to the amount of work my client was able to do for himself in compiling figures and organizing documents.

Hole 3 – Send an Offer

In high-conflict matters, I do not find 4-way meetings (between both partners and their lawyers) to be productive. Just ask me about the time that two clients nearly came to fisticuffs in my boardroom arguing about sex toys. There is also the issue of an imbalance of power to consider. Often if one party feels intimidated by the other, a 4-way meeting or mediation will worsen their insecurities and heighten anxiety. As such, at this stage I often test the waters with a settlement offer, on all or some of the issues. If the other party responds with even a faint trace of reasonableness, then this can be an opportunity to exit the litigation stream and save the parties untold legal fees. If there is no response, or a complete rejection, then the strategic and case building plans continue.

Hole 4 – Action

Why do I avoid trials? They are bad for families.The appropriate action will depend on the strategy my client and I have prepared (and reviewed regularly as the matter progresses). Depending on the goals and issues of the parties, this might include: court applications, case management meetings, psychologist interventions, Questioning, valuations or appraisals of property, or other alternative dispute resolution avenues (such as non-binding JDR or arbitration) of some issues. Again, my approach is to “make holes” by starting small and trying to “check off” issues bit by bit. Once it seems that as many issues as possible have been resolved through these avenues, then I will begin discussing “final” resolution options with my client.

Hole 5 – “Final” Resolution

Few high-conflict files “end”. However, they can be brought to a nearly- or semi-permanent conclusion. There are many options to do so which are cheaper and less destructive than a full-scale trial, including summary judgment or summary trial, a trial on one issue only, arbitration, special chambers applications, or binding JDR. Deciding what to do is a tricky decision for anybody, but especially for a party under the stress of personal, acrimonious litigation. I provide detailed pros and cons of the available options (including trial) and give my client time to make their choice.

More Holes Make Better Swiss Cheese

Often holes 1 through 4 need to be revisited one or more times before hole 5 makes any sense. Which means, by the time we reach “hole 5”, the emotions have had time to reduce from a “boil” to a “low simmer” and the parties are sick of fighting and just want it over with. The family, like Swiss cheese, has matured and become less acidic. My goal is not to break the family apart but to help the members rise to the occasion and turn their family into a restructured whole – albeit with some new holes. There are many reasons why another lawyer might completely disagree with this approach. However, each client whose file I have pursued from beginning to “end” with this method has left happier than they arrived.