In the Globe And Mail on Saturday, March 26, 2011 there was an article published by justice reporter, Kirk Makin. He honors Chief Justice Warren Winkler as “one of Canada’s best hopes for family-law reform in Ontario.” Winkler publicly condemns the rules of the justice system. “At a certain point, let’s not adjust any more,” he says. “This has been studied to death. We have to sit down with a white piece of paper and redesign the system. It has to be made cheaper, faster and simpler, without convoluted rules. It’s the hours that are the killer. The family court rules look like a Boeing manual for an airplane.”

As stated by Makin, “Inevitably, cases that move through the system faster become simpler, since there isn’t time for as many motions. A few years ago, [Winkler] designed a process that slashed the Toronto civil-case wait-list.”

In response, Winkler announced, “We went from waiting 37 months to a trial to pretty much having one whenever you were ready. As soon as you have a courtroom with the lights on, the settlement rate skyrockets. As soon as the trial date is a couple of weeks away or a month away instead of three years from now, the motions all go away. I used to say: ‘You can have an adjournment if you die or if you promise to. But otherwise, I’m not adjourning this case.’ ”

According to Makin, Martha McCarthy, a veteran Toronto family lawyer, said her bar’s main reservation about what Winkler initially advocated was his emphasis on mandatory mediation – a process that can put domestic-abuse victims across the table from their abusers in a mediator’s office. To further quote Makin, “bar leaders met with Chief Justice Winkler and found him willing to modify his proposal from mandatory to “presumptive” mediation, in which judges can take suitable cases and home in on particular areas in which to create a peaceful resolution.”

Winkler is also keen on the widespread creation of unified courts that would bring aspects of federal jurisdiction, such as divorce, and provincial procedures, for instance, access and custody; division of assets, under one roof. “People wouldn’t be running from one court to the other,” Ms. McCarthy said, approvingly. “We would have specialized judges.”

Speaking about fixing the field of family law, Winkler concludes, “This is an area that cries out for change, but it just needs resolve. If legislators pass the laws, rules will be made to apply that law. Then, court administrators can administrate those rules. Bingo, bango, bongo, it all trickles down.”

For more information on family law reform, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

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

Attempts to reform the family law courts have created a patchwork of methods that vary widely from region to region. One key difference lies in the adoption of the unified family-court model, where a single judge, appointed jointly by the federal and provincial governments, deals with most family-court matters under one roof. Saskatchewan, Manitoba, New Brunswick and Newfoundland have such courts. British Columbia, Alberta, Ontario and Nova Scotia, however, do not, and they lean heavily on generalist judges. There remains several family-court idiosyncrasies across the country.

Ontario, like Alberta, has embraced “judicial dispute resolution,” a process whereby judges try to settle cases through conferences with the parties. Some experts are critical of the province’s failure to implement a unified family-law system. “If you’re not going to run a province-wide, unified court system, you have severely limited your options,” Dalhousie University law professor Rollie Thompson said. “In a generalist court, family law just gets submerged.”

Nick Bala, a family-law expert at Queen’s University, agreed. He said the family bar in Toronto, for example, has steered more and more cases toward private mediation and arbitration in an attempt to settle matters faster and more inexpensively.

British Columbia has also recently adopted a new set of family-law rules to streamline procedures and encourage the resolution of cases through forms of mediation. They are innovative pioneers in trying to get things out of courts,” Prof. Thompson said. “What we need everywhere are simpler rules and procedures. Rules have a tendency to be written for the benefit of judges; to make their lives better. But the more you create rules, the more you impose costs on people who can’t afford them.”

“We can’t afford to continue with the model that we now have with different judges dealing with cases,” Prof. Bala said. “It’s inefficient for the parties. It’s inefficient for legal aid. It’s inefficient for the justice system.”

For more information on divorce… the Canadian way and the family-court system visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

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

The decision to divorce isn’t usually made easily or in haste. Among the many issues to consider are financial, social and psychological ones. Whenever children or illnesses are involved, the decision is even more difficult. But, for many people, divorce may be more of a years-long process than a single decision.

When infidelity puts the private lives of public figures and celebrities in the news, we can sometimes glimpse the stages of this process. For example, on January 27, 2010, People Magazine reported that John and Elizabeth Edwards were now legally separated. According to People, the divorce papers had been ready for nearly a year but Ms. Edwards had yet to finish the paperwork.

As we know from the public record, the process of the Ms. Edwards’ divorce started long before she asked an attorney to prepare the papers. Back in May 2009, Ms. Edwards came out with a best-selling book, “Resilience.” In the book, Ms. Edwards discussed why she chose to stay with her husband in 2006 after he admitted to being unfaithful. She seemed to have made peace with their situation. The recent announcement in People suggests, however, that their reconciliation came to a close when Ms. Edwards learned her husband had fathered a child with his mistress.

In my practice, I find many clients do try to make their broken marriages work. Some are successful in repairing their marriages through counseling, support groups and other resources. Others call me, several years after their initial contact with me, to tell me that now is the time. Their process is over and they have come to terms with the idea of divorcing.

If you find yourself in this unfortunate situation, whether or not you intend to get a divorce right away, talk to an attorney so that you can incorporate a realistic evaluation of what your rights and obligations may be if you do divorce.

For more information on divorce preparation, visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

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

Source

Marriage has evolved to become something else. When you decide to marry somebody, you enter into a marriage contract of some form that entails a lot. A marriage contract is a legal agreement between two partners who are married and those who are planning to marry. The most recognized form of marriage contract is a prenuptial agreement. There are so many legal factors that come riding on the back of a contract. There are many promises or agreements reached in regard to the marriage of a couple. The minimum legal requirement for a contract of marriage to take place is at least one witness who can attest to your agreement. Both partners also need to sign the agreement with their valid signatures that will show the contract is in order. The agreement takes effect once you are married. If you had done the pre nuptial, it will role into action once you are joined together in matrimony. In many occasions, the contract will have agreement about financial issues and some of the things addressed include owning various assets, managing the assets, how to handle the debts and so on. This is an agreement for when the marriage is going on.

If the marriage breaks up, everyone will know their responsibilities and rights to any assets as they agreed in the beginning. This kind of contract is especially essential for people like Kim Kardashian and Kris Humphries who have a lot of wealth. However, it is undertaken by all those people who feel that a problem might come up when it comes to sharing of assets and wealth. Therefore, a couple will decide who will take the house on the onset of divorce. Other things include financial support for the children and other funds for the welfare of the family. Many people have found themselves in legal tassels and this has not been pretty. By recognizing that you need to take charge of the marriage today, you will be saving yourself a lot of headache in the future. However, this issue still sparks a lot of debate. Many have criticized it as a bad wish for the marriage and others think it is quite selfish and insensitive. The truth is, about half of all marriages are ending in divorce and, marriage has proved to be an institution that can fail so why not safeguard your financial future?

To take caution; it is only wise to plan for any future eventualities. Perhaps the issue that comes up is fairness. Are contracts for marriage fair to each partner or are they the dictates of the more superior person? This is a good question and, couples will usually be advised independently by their lawyers. This is to make sure that everything drawn is in accordance to due fairness. If the spouses agree, there is not much to it. However, in cases where it is clear that one partner is unfair, the court may set aside the matter for review. Therefore, it is vital to have a legal advisor who will guide you into the matter and advise you in the best way possible.

Kim Kardashian Files for Divorce from Kris Humphries

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

Sincerely,

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

If you have been contemplating separating from your spouse or even divorcing, you have likely done some research that a top Toronto Divorce Lawyer can be expensive.  Almost all Divorce lawyers in the province of Ontario charge per minute for their time and they won’t charge any less for an uncomplicated case.

Whether you are Donald Trump or the guy next door, the divorce lawyer is going to charge you the same hourly rate.  Most divorce lawyers in the Toronto area won’t even talk to you without first paying them a hefty up front Retainer of thousands of dollars.

Now, if your case involves a lot of property, assets, investments or if you’re self-employed in your own successful business (like Donald Trump), then paying a top Toronto Divorce lawyer to guide you around the financial landmines that may ambush you in a divorce may pay off.

Some folks don’t have a lot of money to protect; and instead, are fighting for custody or access of their children. This is another situation where you may consider retaining a lawyer.  If you are looking for a lawyer, try to find one that will take your case for a fixed fee.  Most divorce lawyers do not offer fixed fee retainers but there are a handful of firms out there that subscribe to our philosophy, that all people deserve equal access to justice.

If you’re more like the guy next door with a house, a car, a couple of kids and an RRSP, then you may want to consider managing your Ontario divorce yourself with the help of a Toronto Divorce Coach. Ideally, your Divorce Coach should be an experienced Divorce Lawyer who will help you understand your rights and obligations and assist you with your negotiations.

Your Divorce Coach can also help you prepare correspondence, a Separation Agreement or Court documents, if you fail to come to terms with your spouse.  In this scenario you would do the bulk of the leg work and your Divorce Coach guides and advises.  You pay only for the help you receive on an as needed basis.  This kind of service can be provided hourly or on a flat fee basis. There are also online do it yourself divorce sites where you can speak with an Ontario Divorce Coach online.

The trick will be to find an experienced Toronto Divorce Lawyer willing to be a Divorce Coach. Most lawyers haven’t yet woken up to the reality of the new economy.  The profession needs to find ways to provide necessary legal services in a way that is affordable and effective.  Divorce Coaching is one way of doing just that.

We hope that this article has been helpful and for more information about getting your own Divorce Coach go to MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

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

Our next series of articles will focus on the most important issues you need to consider if you are planning to separate from your spouse in Ontario. Here are the first two:

My wife and I just separated.  We were only married for 2 years and do not have any kids, do I have to pay her spousal support?

It depends on a number of different considerations including whether and for how long you lived together prior to getting married, if she earns less money than you and if so how much less, if she requires financial support, if you have the ability to provide her with financial support, if your wife sacrificed her career when you got married and her ability to become self-sufficient in a short period of time, to name a few.

All of these factors will be taken into consideration by the judge in determining whether you should pay your wife some spousal support, and if she so, how much and for how long.

When determining the amount of spousal support to be paid and the duration of support payable, if any, many judges in Ontario now rely on the Spousal Support Advisory Guidelines.  The Guidelines will generate a transitional amount of spousal support, with the length of the transition period being proportionate to the length of the parties’ cohabitation/marriage.  For short marriages, like your own, the amount of support generated by the Guideline Formula will often be small and for a very short transitional period.

The short transitional period allows spouses time to achieve or approximate the same standard of living that the spouses enjoyed while married, while at the same time encourages a clean break between the spouses.

Unless you lived with your wife for a number of years before you got married, if the judge orders any spousal support, it will likely be for no more than 2 years.

For a more detailed discussion about how to determine whether your wife is entitled to spousal support and if so, how much you would have to pay and for how long, we encourage you to read Lecture 3 of “Separating from Your Souse 101″, pages 37 to 52.

My husband and I just separated and he has agreed that I have custody of the kids, how much child support will I receive?

The amount of child support is set by the Tables to the Federal Child Support Guidelines and will be based on your husband’s income and the number of the children you have.  For example, if your husband makes $123,000.00 a year and you have two children, he is required to pay you $1,679.00 per month in support.

In addition to the Table amount of child support, your husband will need to pay his “proportionate share” of your children’s special and extraordinary expenses.  These expenses include the following:

1.              Daycare/childcare for your children while you are at work or at school;

2.              Medical and dental insurance premiums for any private insurance benefits you have for your children;

3.              Non-insured medical, dental and health care expenses;

4.              Private school tuition or tutoring;

5.              Post-secondary education expenses such as tuition fees, books, residence and student fees; and

6.              Abnormally high expenses for your children’s extra-curricular activities such as the fees for your son to play rep-hockey or baseball.

How much your husband has to contribute to these additional expenses depends on what your income is.  If your annual salary is $60,000.00, than your husband would be required to pay 67% of the cost of these expenses.  You would be responsible for paying the balance.

For a more detailed discussion about how to determine the amount of child support payable and other issues that must be considered when you separate from your spouse,  we encourage you to read “Separating from Your Spouse 101″  available at SeparatingFromYourSpouse.com or visit MyOntarioDivorce.com.

Sincerely,

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