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FAMILY LAW

The breakdown of a marriage can be a challenging and emotionally draining experience. Even where the parties start out amicably, the situation often takes a turn when sensitive issues like finances, parenting time, or property become part of the discussion.  In some cases, your personal safety or that of your children will also be a significant factor.  Either way, it is critical to choose the right lawyer as early in the process as possible, so that your long-term interests can be protected. 

 

Michael Coristine is a former senior Crown Attorney who has extensive negotiation, litigation, and trial experience at all court levels.  Michael welcomes the opportunity to represent clients on all family matters, especially those that are more contentious.

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Please see below for a list of family law services offered by Michael Coristine Law.

Litigation and Representation

A lot more goes into effective representation than simply showing up in court and forcefully arguing a position. At the very front end, it is crucial to get to know your client and their circumstances. The most effective family lawyers are able to understand the client’s needs and carefully explain the pros and cons to various legal options. It might be that the client is initially determined to “go to war”, but mediation is far more likely to resolve the issues. In other situations, the client might think the matter will resolve amicably, but the lawyer is troubled by red flags that the client has not considered. An effective lawyer/client relationship requires both sides to actively listen and carefully consider the big picture before taking decisive action that can inflame an already precarious situation. At the core of our family law practice is our litigation experience, especially with contentious issues that cannot resolve without going to court. A motion is akin to a mini trial where usually only one issue is decided by a judge. It is often an issue of some urgency. A motion is an excellent opportunity to size up the overall strength of your case and weigh the cost/benefit of further litigation. Pleadings consist of your lawyer’s written argument of your position that is served to the other party and submitted to the Court in advance. Pleadings that are well-researched, well-written and on point with the issues are more likely to narrow the scope of litigation and conserve court costs. More importantly, experienced counsel who draft effective pleadings are in a better position to advance a position that will ultimately be more persuasive to the trier of fact. For motions, and where the matter ultimately proceeds to trial, the in-court experience of your counsel will go a long way to achieving desirable results. Of course, the facts of a given case will vary, and it is always up to the judge to decide in the end.

Separation Agreements

Whether you and your partner are married or common-law, separation involves the decision to live “separate and apart” from one another. This does not necessarily mean that you physically live in different places. Especially with the cost of living, it is often the case that the parties will remain in the matrimonial home, but stay in separate rooms and no longer share intimacy or finances. Separation also does not mean that your marriage is legally over, but it is the starting point. A separation agreement is a contract that sets out each person’s responsibilities upon separating. Like all contracts, it is critical that each party understands the agreement, that it is fair, and that the agreement was based on an honest accounting of finances. If there are children under 18 in the picture, they will also be a focus of the agreement. Decisions will need to be made regarding the children’s health and education, custody, parenting time, child support payments, and any other costs associated with child care. Even decisions regarding family pets will require some of the same considerations as the children. Another key component of a separation agreement is property: what is going to happen with matrimonial home, as well as any other residences such as a cottage or vacation home? What about things like furniture, art, or other favorite possessions? Finances are also a major aspect of the separation agreement. For example, there are usually shared debts (credit card and line of credit balances), or assets (bank accounts or other investment accounts such as stocks and RSPs). What about a pension or life insurance policy? The parties must also determine whether spousal support will be necessary. If so, how much needs to be paid and how often? For how long will be the payments be made? There are also tax implications for both parties to consider. Most importantly, a separation agreement must be enforceable. For that reason, it is essential to consult with a family lawyer prior to signing off. Remember that circumstances can change due to a number of reasons: one or both parties enter a new relationship, relocate, lose employment, suffer an injury or some other health issue. Nothing can stop one party from attempting to change a separation agreement through the courts, but a properly drafted agreement done in consultation with lawyers will have the best chance at holding up.

Spousal Support and Child Support

A separation or divorce is not always the end of the financial responsibility for either party, particularly if children are part of the family structure. Depending on factors such as income disparity, custody arrangement, and/or employment prospects of either party, one party could be required to maintain a higher degree of financial support for the family unit. That financial support could come in the form of spousal support, child support, or both. While it is always the goal to amicably work out spousal and child support agreements, this is often not immediately realistic. For example, if one party is not providing full disclosure of financials or being outright deceitful in hiding money, the process can drag out and become highly contentious. It is important to note that entitlement to spousal support is not automatic, even where there is income disparity, or the marriage was long-term. Spousal support arrangements can also vary in terms of amount and the structure, for example monthly payments vs a lump sum payment. Child support is calculated based on well-established guidelines. Where the income of the party paying child support exceeds certain thresholds or where other circumstances dictate, the guideline amount can be varied. One important consideration is that child support can be reduced where parenting time stays within at least a 60/40 split between the parents. As with all areas of family, it is important to consult with a family lawyer prior to agreeing to any firm arrangements. Circumstances often change down the road. It is far better to expend resources on the front end creating a sound agreement than dealing with a poorly-conceived one in court later on.

Custody and Access AKA "Parenting Time"

Many of us are familiar with the traditional family law terms of “custody” and “access”. Recent changes to the Divorce Act have replaced those terms with Parenting Time, Decision Making Responsibility and Parenting Orders. Family law is guided by the principle of what is in the “best interests of the child.” However, it is often difficult for parents to agree on what is best for the children when they are in the other party’s care. Even where the parties begin with good intentions, these often become highly-contested issues that requires extensive legal assistance, especially when new partners enter the equation, or one party seeks to relocate. Unfortunately, parental alienation – where one party actively seeks to damage the child’s relationship with the other parent - is also common. I firmly believe that both parents must do everything in their power to ensure they do not subject their children to a bitter, dysfunctional, and damaging situation. Our clients can expect relentless advocacy where the best interests of children are at stake.

Alternative Dispute Resolution (ADR)

It is true that family cases rarely proceed to trial. That is largely due to the expense and time involved with a trial, but also the desire to avoid a “winner take all” proposition. Family law usually involves various forms of alternate dispute resolution (ADR) as a means to conserving resources and achieving some measure of fairness for the various issues to be decided. Mediation is a form of ADR that involves an experienced, neutral mediator who meets with both parties and their respective counsel to assist them with resolving various issues. Mediation can also involve the assistance of neutral third parties such as parenting professionals. While mediation is not done in court, the process itself functions alongside the court process. Mediation is a voluntary private process. The parties can achieve solutions that may not be possible through the court process, but that are nonetheless legally sound. Most parties to mediation find that is a less adversarial and more cost-efficient approach than going to court. Where mediation does not resolve all the key issues, the parties can enter into arbitration. Like a mediator, an arbitrator is a neutral third party. Although arbitration is private, the process is more akin to a court proceeding. Evidence will be presented and arguments will be made by the lawyers. The most important distinction is that, unlike a mediator, an arbitrator will ultimately provide a legally binding decision for each issue that is in dispute. Because wait times are always longest for actual court appearances, arbitration can serve as a more expedient and cost-efficient approach to resolving critical issues between the parties.

Property Division

The Family Law Act (Ontario) governs the division of property and assets through a regime known as “Equalization of Net Family Property.” The regime is an automatic entitlement for married couples who are going through separation or divorce, with the goal being to ensure an equal share of marital property for each party. The theory of the equalization regime is that each party must be compensated for their contributions to the marriage regardless of legal ownership of property. A spouse who has accumulated more property during the marriage than the other spouse will owe an "equalization payment" to even things out. Either spouse can apply for equalization the FLA, at any time following separation. Note that any bad conduct (ie, cheating) does not affect legal entitlement to property. There are limitation periods under the FLA. You must bring your equalization claim within the earliest of the following: •Six years of the date of separation; •Two years from the date of divorce; or •Six months from the date of the spouse’s death. Finally, common law and unmarried couples are not entitled to equalization under the FLA regime, but can still make out individual claims for property on a case by case basis. As with any critical area of family law, you should consult with an Ontario family lawyer to get a better idea of how the law relates to your specific property situation, and to ensure your interests are not jeopardized in your divorce or separation.

Domestic Violence

It is unfortunately common to see an overlap between domestic violence and the breakdown of a marriage. Domestic violence, or “Intimate Partner Violence” (IPV) involves any manner of violence – physical, emotional, or implied – against any member of a household, including children. In some cases, it will be prior acts of abuse that form the backdrop for divorce proceedings or child custody disputes. In other more urgent circumstances, it will be necessary to get the police involved, or seek out emergency court orders such as a restraining order or an order for exclusive possession of the matrimonial home. Recent changes in case law allow victims of IPV to sue the other spouse for damages, however that area of the law is far from settled. Whether you are being falsely accused of abusive behaviour, or you are seeking protection from ongoing abuse, I am happy to offer my extensive trial and litigation experience dealing with all areas of domestic violence to assist you.

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