DON’T KID YOURSELF: THE TRUTH AND LIES OF DIVORCE

Love and marriage should not be taken lightly. It seems like every day we see relationships in turmoil on television and Hollywood romances renounced. People aimlessly jump into this commitment without thinking like a couple in a drunken stupor leaping into bed. But love and marriage should not be toyed with either. It is not a game and the truth and lies of divorce can impede the pursuit of happiness. A dishonest marriage can turn two honest, loving people into two deceitful, unscrupulous people in a simple twist of fate. Marriage is certainly not a game anyone wants to play.

Like a child clutching its most adored lucky charm, we hold on to our faith that love conquers all, even if this love will ultimately lead us down an ugly road of despondency and separation. This passionate philosophy keeps people trying to rekindle the flames of an already extinguished fire for far too long. Even when we realize that our one true loves are not in fact the figure of our fantasies after all we hold on to them like a safety blanket just because we “love them.” But love should never require sacrificing yourself or forfeiting your joy or aspirations. You can love a person and choose not to be with them. Sometimes an honest perspective is healthier than a dishonest reality. Love is not enough of a reason to keep the flames burning. You might hurt each other if you keep burning what is just not there. While the split will still be sad, it does not have to be dramatic or deceitful. To avoid any unnecessary grief take the following truths and lies with a grain of salt:

#1 Lie: You should not split up until you have fallen out of love.

Truth: Once you love someone, you will love him or her forever. People do not fall in and out of love, as if love can be measured. People fall out of trust, intimacy, and respect.

#2 Lie: If we loved each other more, we would be able to make this relationship work.

Truth: Love is only a prerequisite, and it is the easy part. Great marriages take deep partnership, and a commitment and a willingness to grow together and individually on all levels – emotionally, mentally and spiritually – by both people.

#3 Lie: If the relationship ends, we have failed.

Truth: The failure is overstaying. Be honest with yourself and each other when it is time to end your relationship, without having to make it anyone’s fault. Your goal is not to become the next reality television show, but to use the power of unconditional love and respect that you hopefully started the relationship and marriage with to gracefully transition out of it. Remember, at the end of the day, you both want the best for each other, do you not?

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Do-It-Yourself Guide To The Family Courts – (16) Our Mission

The delivery of family law services in Ontario is unnecessarily complicated and costly, preventing most people from accessing the legal services necessary to properly resolve their most basic legal problems. The cost of a Family Law Lawyer in Ontario is too expensive and open-ended to be accessible to anyone except the wealthy.

My firm, Berman Barristers, is the only Family Law firm in Ontario dedicated to the development of innovative divorce solutions as an alternative to traditional lawyers. By developing MyOntarioDivorce.com, Berman Barristers has designed the first and only online tool in Ontario that automatically creates personalized Divorce Applications and Separation Agreements securely and from the comfort of your own home at a fraction of the cost.

MyOntarioDivorce.com will even help you if you and your spouse CANNOT agree on issues by referring you to Berman Barristers, where you will be offered a FREE Initial Consultation Call with an experienced Family Law Lawyer who will analyze your current situation and issues and recommend a future course of action from an array of the Firm’s unique and innovative solutions that range from do-it-yourself with assistance to full lawyer
representation on a pay-as-you-go basis. Pay once and only for what you need. That is what we call “Innovative Divorce Solutions” or peace of mind in turbulent times.

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B

Do-It-Yourself Guide To The Family Courts – (15) The Truth About Family Law Disputes

The truth is, family law disputes are best settled out of court. Why allow a stranger (the Judge) to decide what is best for you and your children? Lawyers and Judges are not trained to deal with the emotional complexities that cause otherwise reasonable people to argue over the family pet, or worse, the children. Save yourself heartache and money by coming to an agreement with your spouse. Be prepared to listen and compromise. Let her
have the furniture; let him have the television. If you have children, picture them as you speak to one another. They need both of you, they need stability. What they do not need is the disruption and destitution caused by the family court process. If you do not have children or your children are now adults, compromising with your spouse will secure your emotional state of mind and bank account. But in order to arrive at a fair agreement, you must educate yourself about your rights and obligations. The best way to do that is to go to MyOntarioDivorce.com and check out the FREE Resource Centre.

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B

Do-It-Yourself Guide To The Family Courts – (14) MyOntarioDivorce.com

Self-representing in Family Court is confusing and frustrating. It can take upwards of a month to prepare the paperwork you need to proceed with your case and even then there is a chance that you will be turned away by the
court clerk or Judge. Having a lawyer guide the way can make the process easier, but it takes a major toll on your wallet. Access to justice should not only be for the wealthy. As someone whose net worth is not in the millions, you should not have to spend your entire life savings resolving problems caused by family disputes.

What you should be able to do is get the information and help you need to do
uncontested matters yourself and contested matters with as little lawyer involvement and expense that the matter requires in light of its value and complexity. For Simple and Joint Divorce Applications and Separation Agreements, you should be able to fill out an online Questionnaire which inputs your personal information and produces your customized document for you. If you want your document reviewed by an experienced Family Law Lawyer it should be doable online at your convenience. And if your matter is headed to court, you should be able to have a FREE Case Analysis from an experienced
Family Law Lawyer to guide you to an affordable divorce solution that suits your case and budget. Most importantly, you should be able to close one chapter in your life with little hardship so that you can move on with the next. MyOntarioDivorce.com offers all of this and more.

MyOntarioDivorce.com is designed to generate Simple and Joint Divorce Applications and Separation Agreements for you. No lawyer is needed unless you want your documents reviewed or have a legal question. In either case you can use our Ask Our Lawyers online service at a fraction of the cost of retaining a traditional lawyer. It offers the information and support you need to prepare uncontested divorce documents on your own and save hundreds of dollars in the process. It is simple! You answer an online Questionnaire and end up with a completed document.

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B

Do-It-Yourself Guide To The Family Courts – (13B) Lessons Learned

6. Protect your financial privacy. Remove your existing financial records from the matrimonial home. Arrange to have your financial records mailed somewhere other than your home, for instance to a mail box or at work. This includes bank, RRSP, and investment statements, credit card statements, life insurance, and pension correspondence.

7. Do not invest gift or inheritance monies into the matrimonial home. The Ontario Family Law Act allows you to exclude from the calculation of your net family property, property you received during your marriage from an inheritance or gift, and property that can be traced to gifted or inherited property.

For example, if you received a valuable piece of artwork during your marriage from your deceased aunt, sold the artwork, and used the money to buy a new car, the car would be excluded from the calculation of your net family property.

This exclusion does not apply to an inherited matrimonial home or to inherited money, property, etc. that has been invested into the matrimonial home. It does not matter if the inherited money was used as a down payment or toward renovations. If it was applied towards the matrimonial home, you cannot exclude it from the calculation of your net family property and it will be subject to equalization.

8. Evidence all gifts: You should ensure that all gifts received during the marriage from a third person are evidence in writing, including the intention of the donor when making the gift. If the gift was intended for the joint benefit of you and your spouse, you will only be entitled to deduct one half of the value of the gift from your net family property.

9. Place property into a trust for the benefit of your loved ones. If you place assets into a trust for the benefit of your loved ones, provided you are not the trustee, you cease to have any interest in the assets or control over them. As a result, they should be excluded from the equalization process.

You need to be careful with the timing of when you place the property into a trust as courts have held that the creation of a trust just prior to separation constitutes an intentional depletion of assets and therefore included the property in a spouse’s net family property calculations.

It is best to be proactive and create a trust well before a possible separation or
divorce is on the horizon.

10. Do not maintain the same matrimonial home. The value of a matrimonial home brought into a marriage and used as a matrimonial home, but sold prior to a separation, is deductible from that spouse’s net family property. It does not matter that proceeds from the sale were used to purchase the matrimonial home existing at the time of separation.

These are just some of the lessons and strategies you must learn for the next go-around, whether you plan on marriage or cohabitation.

There are plenty of others. Many of them and answers to lingering questions that I am sure you have are answered at the “Resource Centre” available to MyOntarioDivorce.com members.

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Do-It-Yourself Guide To The Family Courts – (13A) Lessons Learned

When all is said and done, hopefully you will have learned something after going through the meat grinding experience of the Family Courts. In case you are too shell-shocked to retrieve these lessons from your subconscious mind, here are 10 lessons you must learn before you say “I do” again:

1. Do not get married again: Only married spouses have statutory property rights in Ontario, including the right to request an equalization of net family property. In order to obtain an interest in their spouse’s property, a common law spouse must commence an Application based on the equitable doctrine of constructive or resulting trust, which trusts are difficult to establish.

2. Domestic Contract: If you must get married again, a Marriage Contract or Cohabitation Agreement is a very effective method of protecting your assets from being subject to a property dispute if you and your spouse separate, whether based on statute or in equity. Typically these contracts are prepared before parties marry or cohabit but they can be made afterwards.

Domestic contracts are particularly advisable for people who are going into a
second marriage/common law relationship and have significant business interests or have substantially more assets than the other future spouse.

To ensure the domestic contract’s enforceability and to protect the contract from being set aside by the courts, full and complete financial disclosure must be made by both spouses, both spouses must obtain Independent Legal Advice, and both spouses must enter into the contract under their own free will, free from any compulsion or pressure.

3. Forget about joint accounts. Keep your accounts in your own name. This includes bank accounts and credit card accounts. Otherwise, each person on the joint account will be liable for the full amount of the over-draft or debt. Furthermore, do not deposit monies received as a gift by a third person or by inheritance into a joint bank account. Joint accounts are presumed to be shared equally. As a result, you will only be entitled to exclude one half of the value of the gift or inheritance unless you can rebut the presumption.

4. Pay off your debts before you get married again. Any debts or liabilities you have on the date of marriage will decrease the value of the assets that you have, and therefore your future allowable deduction on equalization of net family property. In order to ensure that your assets have the greatest value possible, make sure to pay off your debts and liabilities before you get married.

5. Just after you tie the knot, obtain documentary proof of the value of all your assets, debts, and liabilities as at the date you were married. The Ontario Family Law Act entitles a married spouse to deduct from the calculation of their net family property the value of property, other than a matrimonial home, that the spouse owned on the date of marriage, after deducting the spouse’s debts and other liabilities.

A court will not allow you this deduction if you cannot provide documentary evidence of the assets, debts, and liabilities. So if you have $50,000.00 in RRSPs on the date of your marriage, make sure to keep a copy of the RRSP statement showing the balance. Obtaining all the documents just after you tie the knot will save you the trouble of trying to find them years later.

To be continued next week…

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Do-It-Yourself Guide To The Family Courts – (12B) Alternative to Court

Choosing a Mediator

Publicly funded mediation for Family Law matters is provided at all 17 Family Court locations in Ontario. These services include mediation of all legal issues arising upon family breakdown including custody, access, support, and equalization of net family properties.

Mediation is available on-site, in the court facility, and off-site, in the mediators’ offices. On-site mediation is free. User fees are charged to clients for off-site mediation on a sliding scale based on the number of dependents and income.

Mediation is voluntary and is not appropriate for everyone, particularly in cases where there has been a history of violence or abuse. Where one party is afraid of or intimidated by their spouse/partner, mediation will likely not be a viable option.

In order to ensure that cases are appropriate for mediation, court appointed mediators are required to screen their clients to ensure that:

• abuse has not occurred that has rendered either party incapable of mediating
• no harm will come to either party or the children as a result of mediating
• the parties’ desire to mediate is voluntary
• any inequality in bargaining power can be managed so as to ensure that negotiations are balanced and procedurally fair
• parties are psychologically ready to mediate and have the capacity to do so
• the complexity of the case does not exceed the mediator’s education, training, and competence

In addition, there is a roster of family mediators available to all clients of the court. These mediators undertake to charge a tariff of $300.00 per party for the first four hours of mediation (including preparation and screening), after which they may charge their usual fee.

As well, you can contact an experienced Divorce Lawyer who can recommend family mediators for your case.

ARBITRATION:

Arbitration is a formal process conducted under the Arbitration Act and is similar to a trial. The arbitrator hears the evidence of each spouse and the arguments made by each spouse, and then delivers a written decision that is as enforceable as a court order.

Spouses who agree to submit to arbitration jointly select an arbitrator, sign an Arbitration Agreement, and schedule a date for the hearing. Typically you can obtain an arbitration date long before a trial date.

The cost of arbitration is either shared by the spouses or, if they wish to give the arbitrator the power to award costs, the arbitrator may order one spouse to pay the other spouse’s costs of the arbitration.

MEDIATION/ARBITRATION (“MED/ARB”):

Mediation/arbitration is a dispute resolution method that is a hybrid of mediation and arbitration. Mediation/arbitration is prohibited by the Arbitration Act; however, the spouses may specifically waive the prohibition.

In mediation/arbitration, the mediator/arbitrator first attempts to settle the issues through mediation. Mediation may turn into arbitration if the mediator/arbitrator determines that mediation has failed.

In this case, the mediator/arbitrator will ignore all the information that had been exchanged in the mediation and will hear the matter afresh as an arbitration. The mediator/arbitrator cannot mediate while he or she is arbitrating and cannot arbitrate while he or she is mediating.

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Do-It-Yourself Guide To The Family Courts – (12A) Alternative to Court

I have been around the Courts for a long time. Unless you are a lawyer that loves to litigate (like me) or a litigant with a lot of money to burn and complicated property issues to resolve, I recommend that you stay away from the Courts. The Family Court process is a money pit that will leave you and your spouse financially ruined and what’s left of your family, emotionally scarred for life.

It takes two to make these alternatives work. You and your spouse must agree to opt out of the Court system. That usually means your spouse will not contribute to the cost of the alternative process or simply refuses to participate in any form of dispute resolution.

There are a number of alternatives to going to court to resolve your Family Law issues. These are generally called “Alternative Dispute Resolution” mechanisms.

MEDIATION:
The Process

Mediation is a process whereby spouses voluntarily and jointly retain an impartial, professionally trained mediator (often a seasoned Divorce Lawyer) to assist them in resolving their disputed Family Law issues. The mediator’s role is to act as a facilitator, to help the spouses reach a fair and mutually acceptable agreement.

The mediator cannot provide an opinion, take sides, or make decisions for the spouses. It is also not the mediator’s role to give legal advice.

Before mediation begins, the spouses must decide whether the mediation will be open or closed. In open mediation, the mediator may be asked by either spouse to write a full report on what happened during the mediation, including the reasons why it was or was not successful. If the mediation is not successful and the case proceeds to a court trial, the report may be taken into consideration by the trial judge. In addition, the mediator could be required by either spouse to testify in court.

In closed mediation, the information exchanged between the spouses is kept confidential.

The mediator’s report will only state whether an agreement was reached. Neither spouse can request that the mediator testify in court.

Often the mediator will meet with both spouses together just to hear each spouse’s positions on the disputed issues. When the parties are ready to begin negotiating but where there is hostility between the spouses, he or she will separate the spouses into different rooms. The mediator can then shuttle between the two spouses to negotiate an agreement. Parties who are unhappy with the mediation process can leave it at any time. It will not affect your legal rights or options.

At the conclusion of a successful mediation, the terms of the settlement must be put into writing and signed at the mediation.

These terms can subsequently be incorporated into a formal Separation Agreement. Mediators are required to advise and encourage clients to seek Independent Legal Advice before finalizing any binding agreement.

You should obtain Independent Legal Advice from a qualified Divorce Lawyer before you attend mediation so that you are aware of your legal rights and obligations.

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Do-It-Yourself Guide To The Family Courts – (11) Practical Tips for Your Day in Court

• Arrive at the Court House 30 minutes before your attendance is scheduled. Some courts are very busy and have long court lists. You may have to sift through 5 pages of court lists before you find your case on the list and the information of what judge (or Master) will be hearing your matter and in what court room.

• If a judge is presiding over your case, refer to him or her as “Your Honour.” If a Master is presiding over your case, you may call him or her “Master.” A judge will be wearing a black gown with a red sash.

• As soon as you enter the court room, you need to confirm with the Court Registrar or Court Service Officer that you’re in attendance and are ready to have your case heard. The Court Registrar wears a black gown and is seated below the Judge’s Bench. The Court Service Officer wears a uniform with a dark blue blazer and is also seated at the front of the court room. Typically, they will have a form for you to fill out and hand in.

• Any exhibits or documents you may have to give to the judge must be handed to the Court Registrar. On most occasions you will not be able to hand over any documents until you have received the judge’s permission to do so.

• When the judge or Master enters and exits the room you must stand. If the judge or Master addresses you, you must stand.

• Be courteous and respectful at all times, both to the judge or Master and to the opposing party.

• Do not interrupt the judge or the other party while they are speaking in the court room. Be patient. Most judges make sure that you have the opportunity to respond to arguments or statements made by the other party.

• When the other party is speaking, do not make “peanut gallery” comments such as “that’s a lie” or “you’re a liar.”

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Do-It-Yourself Guide To The Family Courts – (10) Appealing the Court’s Decision

If you are unhappy with a judge’s decision following a trial you may be able to appeal that decision to a higher court. However, there are select instances when an appellate court will interfere with a trial judge’s decision. These are:

1. if the trial judge erred in law; or
2. if the trial judge made findings of fact or credibility that were the product of a
“palpable and overriding error.”

A “palpable error” is an error which is obvious, plain to see, or clear. Examples include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence, and findings of fact drawn from primary facts that are the result of speculation.

An “overriding error” is an error that is sufficiently significant to invalidate the challenged finding of fact. You must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot stand in the face of that error.

The “palpable and overriding” standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts.

Appeals must be filed within certain time limits set out in the legislation or court rules that apply to the case. For example appeals of orders made by a judge under The Family Law Act must be filed within 30 days of the filing of the order with the court.

Appeals of orders under the Divorce Act must be filed within 30 days after the court made the order.

Appeals can be complicated as you cannot simply appeal a decision because you do not like the decision or feel it was wrong. We would strongly recommend that you obtain legal advice from a qualified Divorce Lawyer before you decide to appeal an order as well as to represent yourself in court in the event that you do appeal the order.

For more information on divorce proceedings and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer