Custody means the right to make major decisions about the best interests of a child. A parent who has sole or full custody of a child is usually the primary caregiver for that child and usually lives with that child for the majority of the time.

Generally, courts will award sole custody to the parent who is more closely connected with the day to day care of a child and who is more child-focused. A father who takes an active role in the raising of a child, and who has a work schedule that permits him time to look after the child on a day-to-day basis, has an excellent chance of obtaining sole custody of the child.

In order to increase your chances of getting sole custody of your boys, be sure to be involved in all aspects of their lives — from school, to medical and dental care, to extracurricular activities. Put the children’s needs ahead of your own, and adapt your schedule to theirs, as much as possible.

Finally, be sure to recognize the importance of the boys’ mother in their lives, and encourage the boys to have a healthy relationship with her. Courts recognize the importance of both parents in a child’s life and will likely not grant custody to a father or mother who prevents a child from having a meaningful relationship with the other parent.

Ken Nathens is a senior partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters.

The overall costs of your divorce depend mostly on how complicated and/or adversarial your particular case is. A simple divorce with mutual agreement and few or no property/custody issues will usually be quick and inexpensive. However, if your divorce is more complex and takes a long time to resolve, you are certain to pay more in legal fees. Even if this is the case, however, there are ways to lower your costs.

If your spouse is willing to discuss the issues peacefully in a non-combative setting, you may wish to try mediation. This popular alternative to court battles allows the spouses to work out an agreement themselves under the supervision and guidance of a professional mediator (often a lawyer or counselor). Typically, each party employs a lawyer to give legal advice in the process. Although it’s not recommended for every case, mediation usually saves both time and money in resolving divorce cases.

Similarly, resolving your divorce in an out-of-court settlement (if possible) will be far less expensive and time-consuming than slugging it out in court for weeks or even months. In a court battle, the fees keep piling up until the end is finally reached, but an agreement will avoid such excess time and financial expenses.
Whether you’re mediating, settling, or litigating your divorce, one smart way to save money in the long run is to use your professionals’ time more efficiently. Lawyers, accountants, counselors, and other divorce-related professionals typically charge fees by the hour. So you don’t want to waste their time and your money on irrelevant or wasteful issues. For example, remember not to use your lawyer as a therapist; he or she may sincerely sympathize with your emotional distress, but that’s not what you’re paying the lawyer for. You can also save your lawyer a lot of time by providing all relevant information for him or her right away. This way, you don’t have to pay the lawyer extra for unnecessary research or waiting. The more prepared your lawyer is, the better (and more economically) he or she can serve you.

Divorce can be very expensive, and it’s understandable that you would want to lower the overall costs. However, don’t sacrifice your chances of getting an acceptable outcome for the sake of saving money. Don’t pick a lawyer solely on the basis of lower fees; make sure that he or she will do a good job as well. Getting the best possible long-term results may be worth spending a little extra.

Ken Nathens is a senior partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters.

This is never a good idea. The most obvious reason is simply that you and your spouse are on opposing sides of the case. Even if you’re having a relatively amicable divorce, you and your spouse still have conflicting interests that need to be settled. So your spouse’s lawyer is no position to help you; he or she is required to be loyal only to your spouse. Lawyers have an ethical, professional duty not to speak with opposing lawyer’s clients during a case.

If you phone your spouse’s lawyer, he or she will most likely respond, “I’m not permitted to speak with you.” However, there’s the danger that you may inadvertently give the lawyer clues as to your priorities and concerns in the case. The last thing you want is to give the other side any advantage over you.

If your lawyer is out of town but you feel that your question is urgent, leave a message at his or her office. Most lawyers check messages regularly even when away from the office and return calls as soon as possible. If yours doesn’t, however, ask another lawyer in the firm or an associate of your lawyer. A clerk or paralegal may also be able to help you, depending on the question. If no one else in the law firm can help you, then your best bet is to contact a lawyer outside the case for a neutral answer or opinion. Many lawyers offer free initial consultations.

Before you try these routes, of course, be sure that your question really is urgent. If it can wait until your lawyer gets back, be patient: your lawyer is still the best person to answer it, as he or she is the most familiar with the details of your case.
If your lawyer is frequently unavailable and unresponsive to your questions and concerns, then it may be time to get a new lawyer. But never ask your spouse’s lawyer for advice – at best, it achieves nothing; at worst, you’re revealing too much information to the other side and harming your chances for a fair outcome.

Brahm D. Siegel is a senior partner at Nathens, Siegel LLP and a Certified Specialist in Family Law by the Law Society of Upper Canada.

Divorce is traumatic. It is not realistic to expect that a divorce will be painless or that the road to divorce and separation settlement will not have bumps along the way. The following points may lead to a less stressful divorce, if not necessarily a smooth one:

1. Avoid Court if possible: Court proceedings should be used as a last resort, where negotiation or mediation outside of court will likely not result in a reasonable settlement. If there is a possibility of reaching a negotiated settlement prior to court proceedings being commenced this possibility should be fully explored. Once the divorce is in court there are often lengthy delays and related expenses, and court proceedings tend to create more animosity between parties, not less.

2. Be realistic: There are two sides to every divorce story. Whether your divorce proceeds through negotiation, mediation or court it is not realistic to expect that one party will be the “winner” and the other side will be the “loser” in the divorce. Usually court judgments and negotiated settlements take into account the interest of both sides and the children, and court decisions and negotiated settlements are seldom one-sided victories. Parties to a divorce should avoid going into the process with an “I am going to take him/her to the cleaners” mentality, as this will lead to added expense and ultimate disappointment with the result.

3. Remember the children: Children have the right to know both their parents and spend as much time with each as may be in their best interests. Children are often more flexible and adaptable than parents in divorce proceedings give them credit for. Attempt to be creative with your former partner in coming up with a parenting regime that works for the children. Remember that your former partner has qualities you once admired that may likely benefit the children. Unless there is no other way, do not delegate decision-making powers regarding your children to a third party judge or arbitrator who does not know your children.

4. Disclose, Disclose and Disclose: In Ontario where I practice Family Law, full financial disclosure in a divorce proceeding is a must. This includes disclosure of any and all relevant income, business, or company information of a payor. Often this disclosure may include financial records going back three years or more. The theory is that a fair settlement or judgment is not possible without full and frank financial disclosure. The quicker that disclosure is provided on a voluntary basis, the less expensive the ultimate settlement or divorce judgment will be to obtain.

5. Get Good Counsel: Other than the simplest of divorces where there are no children, no property, and a very short-term relationship, divorce and separation proceedings are complicated. There are a number of ways to resolve divorce and separation disputes, either through mediation, negotiation, collaborative law or court. Do your research and find a lawyer or mediator trained to deal with divorce and family separation that you are compatible with and who can assist you through the process.

Divorce and separation is not a smooth process. The five points set out above will minimize the financial and emotional distress caused by the process, however will not likely eliminate them altogether.

Ken Nathens is a senior partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters.

You can object to an amount of fees charged by your lawyer if you feel it is too high, or if there are charges that you feel are not warranted or did not expect. However, it is important to discuss the billing problem with your lawyer (or the billing department) right away. In fact, you can save yourself the trouble of dealing with a too-high legal bill by being clear right from the start on the lawyer’s billing process.

Upon first hiring your lawyer, make sure he or she explains clearly how you will be billed and what he estimates the full cost will be. Also keep in mind that the total amount will increase with every court appearance and every meeting with the lawyer. This way, you should have a good idea of what to expect at billing time. An official written fee contract helps to make things clear as well. If keeping costs down is an issue, you can help do that yourself by using your lawyer’s time economically – such as only meeting with him/her when absolutely needed and providing information and documents right away.

If you receive a bill that’s more than you expected, look it over carefully. Keep in mind all the services your lawyer performed for you and when, and compare it to the info on the bill. Look at the specific items you were charged for. If you feel there has been a mistake or a misunderstanding, discuss this with your lawyer face-to-face. (Make sure, of course, that you will not be billed for this meeting.) If there has been a mistake, your lawyer should be willing to reduce the bill immediately. If he or she doesn’t, you may challenge the bill in court, but keep in mind this means hiring another lawyer and paying additional legal fees.

Brahm D. Siegel is a senior partner at Nathens, Siegel LLP and a Certified Specialist in Family Law by the Law Society of Upper Canada.

In Ontario, the rights of common-law (including same-sex) partners and married spouses on the breakup of their relationships are not always the same.

The law makes no distinction between married and unmarried couples for the purposes of child support. The rule is that child support is the right of the child, regardless of whether or not the parents of the child are married.

Both the Divorce Act (Canada) and the Family Law Act (Ontario) provide that married spouses are responsible for each other’s spousal support on separation in most circumstances when there is need and an ability to pay. There is no minimum time period for which the spouses must be married in order to give rise to a support obligation. For common-law and same-sex partners, the Family Law Act provides that an individual may be responsible for the support of his or her ex-partner if the partners have a child together or if they have cohabited continuously for a period of not less than three years.

The Family Law Act requires that the value of property accumulated during marriage, with a few exceptions, shall be divided equally between spouses on separation. This is regardless of whether or not there was an equal contribution to the acquisition of property by the spouses. On the other hand, there is no presumption in law that the property of non-married partners should be divided equally on separation. Property division will depend on each partner’s financial contribution to the relationship and in whose name the property was purchased.

Ken Nathens is a senior partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters.

One of the first things I am asked by potential clients, usually way before I’m even retained, is how long will it take for them to be “legally separated.” Most people are quite surprised to hear that by the time they see me, they are already are.

Most people believe that to be legally separated they must be living in separate homes, that a written agreement needs to be signed, or that a judge must have made a court order of some kind. None of this is true. In family law, you are legally separated once you are living separate and apart with no chance of reconciliation. “Separate and apart” means, in general, that by actions or words, one of the spouses has decided that the marriage is over — for good.

Why is the date of separation relevant? Two reasons. The first is that under Canadian law, you can only get a divorce one year after separation. There are two exceptions to this — cruelty and adultery — which are almost never invoked. The second, and far more important reason, is that the date of separation is the date on which all of the property is valued and by which the property payment — called an “equalization payment” is determined. We call this date the “valuation date.”

Most of the time the valuation date is easy to determine. It’s the date one of the spouses tells or writes to the other that he or she wants a separation or divorce. Sometimes this is followed up by a letter from a lawyer, or the spouse moves out, which makes it even easier.

But sometimes the date is not so clear. The parties have talked about separation and threatened each other with divorce for years. They have talked about or gone to marriage counselling intermittently. Or, things have just been generally bad between them and it’s not clear exactly when reconciliation became impossible. In these situations, case law has developed some rules of thumb to help guide lawyers and judges:

1. Physical Factors: When did the parties last engage in sexual intercourse? When did they stop sleeping in the same bed? If one committed adultery, when did this relationship begin?

2. Economic Factors: When did the parties, or one of them, stop putting money in the joint bank account? Did the person who normally pays the bills threaten to stop doing so or transfers a large amount of money out of the “family” account?

3. Social Factors: When did they stop going out as a couple, taking vacations or attending social functions such as weddings or bar mitzvahs together? When did they stop having meals together?

4. Marriage Counselling: When did they start, and more importantly, stop attending marriage counselling?

None of the above factors are determinative, meaning none of them in and of themselves decide the parties are separated. Sometimes they will seem inconsistent. I have also seen cases where the parties had not slept together for years but continued to vacation after the professed date of separation and even ate together as a family and did their laundry together.

Often, even when the parties differ on the date of separation it makes little to no difference since the value of their property is not that different between the two dates. In these cases, usually the lawyers will calculate the difference and advise the clients to either select one of the dates or choose a midpoint date. But, in cases where the dates lead to a huge discrepancy in each party’s net worth, the lawyers will need to figure out what the true separation date is and, if they cannot, a judge will have to make a decision on it. Usually it does not get to that point because with the aid of lawyers, one date will be chosen or a compromise will be reached.

So, before you commit to a “valuation date” in your negotiations, make sure you have a clear understanding of what your date of separation is, as it may greatly impact on your final property settlement. If you are not sure why your spouse has selected a particular date as the separation date, ask yourself — and the spouse. Ask for documents proving the value of your spouse’s assets and debts at the proposed date, and compare these to “your values” to make sure the date isn’t being manufactured in order to secure an unreasonable advantage on the property issues. Finally, if there is any uncertainty in your position, make sure all proposals or offers regarding the date of separation are marked “without prejudice” so you will be able to change them later on. Once a court case has been commenced however, you will have to commit to a particular date which is difficult (but not impossible) to change later on, so make sure you have plenty of discussion with your lawyer about the date.

Brahm D. Siegel is a senior partner at Nathens, Siegel LLP and a Certified Specialist in Family Law by the Law Society of Upper Canada.

This article originally appeared in Metro News Canada.

Collaborative law is a dispute-resolution alternative in which both parties’ lawyers agree to work together toward a settlement without litigation. Invented by Minnesota matrimonial lawyer Stuart Webb, collaborative law also involves a written agreement stating that both lawyers must withdraw from the case if either party chooses to initiate adversarial court proceedings.

Like mediation, collaborative law aims to resolve divorce and other types of disputes through cooperation between both sides – with a much lower financial and time expense. However, one of the primary differences is that the parties themselves negotiate the terms of their own divorce in mediation, under the supervision or guidance of a neutral mediator (often a lawyer or counselor). Each mediating party may hire his or her own lawyer for individual advice. But in collaborative law, each party hires a lawyer that specializes in the collaborative-law alternative, and their lawyers do the negotiating – with their clients’ best interests in mind. Whereas mediation may not be appropriate in cases where there’s a power imbalance between the parties, or there’s any other personal disadvantage for one, collaborative law can eliminate this potential problem through having the lawyers negotiate on behalf of their clients’ interests. (Often, a neutral professional such as a financial planner, custody evaluator, or therapeutic “divorce coach” is brought in as well.)

Whereas all matrimonial lawyers can negotiate peaceful settlements in divorce, collaborative law is different in that, again, litigation is completely ruled out as an option. Sometimes, an attempt at a settlement may result in litigation if one of the lawyers and/or parties is unreasonable about their terms or feels that the other party is being unreasonable. In collaborative law, however, both lawyers have agreement as their primary goal, rather than satisfying their respective clients’ separate agendas.

Collaborative law works as a four-way negotiation process to reach a win-win solution to divorce, involving the lawyers’ problem-solving skills rather than their adversarial instincts. Once an agreement is reached between both parties and their collaborative lawyers, the lawyers officially prepare the agreement, the divorce is settled, and clients hopefully move on with their lives.

Ken Nathens is a senior partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters.

Out-of-country vacations for children whose parents reside separately and apart is more than just a task for a travel agent. It is necessary for the traveling parent to obtain the signed authorization of the non-traveling parent in order to obtain a Canadian passport for a child. Furthermore, the notarized written consent of the non-traveling parent to the child’s travel is considered essential as a result of tighter security at borders and customs, and due to greater concern by government officials about international child abduction.

Recently, I have noticed an increase in contentious files relating to out-of-country vacations for children whose parents reside separately and apart. A typical scenario is when one parent wishes to remove a child from Canada for a vacation of 1-3 weeks, while the other parent will not provide his or her consent for the child’s travel due to concerns with the proposed travel plans. Often, the concerns of the non-traveling parent are as follows:

•    The child will not be returned back to Canada by the travelling parent.

•    The intended location of the vacation is politically unstable or potentially unsafe, and thus the travelling parent may be exposing the child to danger.

•    The travelling parent is not willing or able to properly supervise the child while on vacation, thus possibly exposing the children to a risk of harm.

If the issues cannot be worked out collectively by the parents, the Court must resolve this. Questions that the Court considers in determining whether or not to permit the travel are as follows:

1. Is there a Court Order or Separation Agreement that already deals with the    issue of travel?

Courts will generally enforce provisions of a prior Court Order or Separation Agreement that permits travel. However, this can be excepted when a parent is able to convince the Court that there has been a material change in circumstances that justifies the variation of the travel provisions in the best interests of the child. For instance, in the case of Becktold v. Hall 2004 CarswellOnt4774, the Ontario Court of Justice permitted a father to take his child to Walt Disney World, despite the mother’s concerns where the prior written consent of the parents provided that the father would have two weeks consecutive vacation time with the child.

2. Does the parent who proposes to travel with the child/children have a
substantial connection to Canada?

Courts are more willing to permit the travel if the travelling parent has a long history of residing in Canada, has employment or a business in Canada, and has family connections in Canada. The more substantial a parent’s connection is with Canada, the less likely they will flee Canada with a child to reside in another country.

3. Is the country where the proposed travel to take place a member of the Hague Convention?

The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty developed by the Hague Conference on Private International Law. It provides a legal method, from one member nation to another with the assistance of central authorities for each member country working together, for the return of a child abducted by a parent The member nations of the Hague Convention, click here.

However, it is important to keep in mind that there is no guarantee of success in having a child returned under the provisions of the Hague Convention, nor a method to ensure that a contracting country to the Hague Convention enforces the terms of the Convention as intended. Therefore, if there is a real concern about the potential for an abduction of a child from Canada by a parent, the most cautious route for a Court would be to prevent the travel.

4. Is there a potential danger to travel with the child/children?

Courts will consider the political and social climate of the country of intended travel. If evidence is brought to the attention of the Court that the country is going through political or social upheaval, travel may be prevented if there is a possible risk of harm to a child. For instance, in the case of Chammout v.Chammout 2005 CarswellAlta 266, the Alberta Court of Queen’s Bench held that a potential trip to Lebanon exposed children to risk of harm that outweighed the benefit of the children connecting with their Lebanese relatives. In reaching this conclusion, the Court took judicial notice of a travel advisory issued by the Canadian Government. For such travel advisories, click here.

Travel may be permitted even to a potentially risky country if the travelling parent is able to prove that his or her travel plans stay away from political or social “hot zones,” and there is a legitimate reason for travel.

5. What are the reasons for travel?

Courts will consider the reason for the proposed travel. Is it to visit relatives and friends in a different country? Is it for a beach holiday? Is it for a family emergency? Courts are more willing to authorize travel if the reason for travel is legitimate and in the best interests of a child, such as to visit with extended family members, or for a relaxing beach holiday at a family oriented resort.

Courts generally favour travel for children. It is viewed as a unique learning experience for children, and presents the opportunity for children to spend time with friends and relatives abroad whom they would otherwise have limited contacted with. Courts acknowledge that there is some risk to travel, and are careful to consider the risks vs. rewards of potential travel for a child.

Should the travel be allowed by the Court, in order to alleviate the fears and concerns of the non-traveling parent, to the extent possible, the Court will order the travelling parent to provide a complete itinerary for travel, including: flight arrival and departure times, contact phone numbers and addresses of stay. The Court will also require the traveling parent to facilitate frequent — if not daily — communication between the child and the non-traveling parent during the holiday.

Ken Nathens is a senior partner in the law firm of Nathens, Siegel LLP, a Toronto law firm restricted to family law matters.

Jumbo shrimp. Working holiday. Open secret. Tragic comedy. Collaborative divorce. Which of these is not an oxymoron?

If you guessed the last one, you’d be right.

Collaborative family law is the new kid on the block, so to speak, in terms of alternate dispute resolution. Most clients are familiar with the traditional methods used to settle divorce cases like two-on-two negotiation, mediation, arbitration and of course, litigation. What is collaborative family law, and should you consider it?

Collaborative family law, or CFL, is an entirely different way of practising family law. In CFL, the lawyers for both clients agree to assist them in resolving conflict using co-operative strategies rather than adversarial techniques or litigation.

The commitment to work collaboratively is reflected in an agreement that the clients and the lawyers sign prior to any real negotiation. This agreement provides, among other things, that litigation will not be commenced while the parties are negotiating and that — in the event they are unable to negotiate a resolution to their dispute — neither lawyer will be eligible to represent his or her client in any subsequent litigation.

The agreement also provides that the clients will exchange all relevant information, reveal all concerns and agree on the terms and conditions of a mutually acceptable settlement.

Lawyers who work in the CFL field must be properly trained, because the principles and process goals of CFL are markedly different from traditional divorce law in the following ways:

* Proactive Participation: In CFL the clients are responsible for and intimately involved in the resolution of their issues. The clients do not simply sit back and let the lawyers “fight it out.” They voluntarily work with both lawyers to understand the legal consequences of their separation for themselves, the other party and their children, # and are fully vested in the decision-making process through a series of four-way meetings during which both clients and both lawyers are present.Interest-Based Understanding: Unlike the adversarial process, the CFL model promotes understanding of the other person’s interests and concerns. The rationale here is that when parties understand each other, trust is fostered and hostility is reduced. The underlying principle is that when each party acknowledges and understands what is important to the other, creative and mutually acceptable solutions usually result.
# Co-operative Resolution: Because litigation is not an option in CFL, the lawyers and clients come up with creative solutions to their problems. They do not focus on what they would do or say if the case went to court; instead, they tend to work co-operatively and think outside the box. The solutions, at times, may be different than what a judge would do but may maximize both parties’ interests. As a lawyer who represents clients in both CFL and traditional negotiations, I can testify how different the CFL process is in this regard.

# Multi-Disciplinary Team Effort: Central to CFL is the idea that clients and their lawyers work as a team. This means, at times, bringing in other professionals to assist the parties, e.g., mental health experts, chartered business valuators, financial experts, mediators or divorce coaches. The lawyers work with these individuals in a climate of co-operation and respect, allowing the clients to gain from their knowledge and skills and help solve complex issues. This does not mean the lawyers do not advocate for their clients (they do), but they do so by working with — as opposed to against — the other side.

Lawyers who practise CFL will admit it can be challenging and exhausting, but there is nothing better than resolving a difficult case resolved through the collaborative process. If you think CFL is for you, you should discuss it with your lawyer. Not every case is well-suited for CFL, and there are advantages and disadvantages to every dispute resolution process, so speak to your lawyer before taking any decisions. Still, for most separated families, CFL is an idea whose time has come. Often referred to as the “gentle divorce,” CFL is the best process I know of to minimize the negative impact of separation and divorce on clients and their children.

Brahm D. Siegel is a senior partner at Nathens, Siegel LLP and a Certified Specialist in Family Law by the Law Society of Upper Canada.

This article originally appeared in Metro News Canada.