FAQ’s

• My ex-wife has custody of our children, and she wants to move across the country with them. What can I do about it?
• How do I know whether I need a financial planner or Certified Divorce Financial Analyst for my divorce?
• How is it determined which of our property is marital and which is separate?
• What if we try divorce mediation and it doesn't work out? Do we have to go to court, or are there other options?
• Are the services of a mediator or lawyer at MACLEOD BOYLE & GODBOUT MEDIATION CHAMBERS professionally insured?
• I’m sure I do not want my case to go to Court but I am not sure which alternative dispute or issue resolution process is appropriate to my situation. How can I proceed?
• Are all cases accepted?
• Is the assessment meeting mandatory?
• Can we do the assessment on the telephone or be email?
• Can we start the scheduling process by telephone or email?
• I/We have used my/our lawyer as a general practitioner for years. Can I/we use him/her?
• What are the financial costs?
• How do these costs compare with costs for contested matters?
• Is there an average or standard type of costing?
• Is there a guarantee that we will settle?
• Are there any discounts available?
• Is the evaluation questionnaire confidential?
• What is collaborative family law?
• Am I represented by a family law lawyer in collaborative family law?
• Are other professionals involved in the process?
• What makes collaborative family law different from other divorce processes?
• Is collaborative family law less expensive than traditional divorce?
• What happens if agreement cannot be reached and one or both parties want to pursue a Court battle?
• How can I be sure that my spouse will disclose all necessary information under collaborative family law?
• Who practices collaborative family law?
• What is a client-centered process?
• What is the Family Law Arbitration formal hearing procedure?

• What is the Family Law Arbitration boardroom procedure?

• What is a domestic violence screening report?

Q. My ex-wife has custody of our children, and she wants to move across the country with them. What can I do about it?

A. This question delves into the area known as mobility. I have handled numerous cases involving mobility in the Ontario Superior Court of Justice as well as other provincial courts across Canada. Additionally, this is an ever-increasing presenting issue in mediation, arbitration, and collaborative law. Mobility is commonly viewed by clients as the most challenging type of family dispute, as it projects a radical change of the status quo -- often in the context of a well-functioning arrangement. The good news is that a court or negotiation review remains available based on a material change of circumstances. Mobility is often framed as an immediate ground of material change in domestic contracts which further provides advanced notice of the intended relocation. So you will have the means to challenge the proposed relocation.

Adult Canadians are constitutionally free to travel and relocate within our country. However, the prospective move of the children is not guaranteed. The case law is well settled (at the level of the Supreme Court of Canada) in that a fundamental ingredient in a permissible relocation plan relates to the rights of the children's access to the other parent. (i.e., the access parent). If it is an artificial plan devised to defeat the rights of access, the move would have great difficulty in passing this lawyer's challenge and judicial scrutiny.

Q. How do I know whether I need a financial planner or Certified Divorce Financial Analyst for my divorce?

A. A financial reorganization can be challenging at any time. When we add the stress and uncertainty that accompanies divorce and separation, a reliable financial expert or analyst can assist your deliberations and strategic planning. There is a big difference between complexity and complication. Accredited financial planners working with the lawyer and client can often eliminate many complicating factors arising from a great many details including accounting principles, income-tax treatment, pension evaluation and computer-database assumptions.

Lawyers should be vigilant in organizing the best resources around their clients' decision-making. In terms of dispute resolution, increasing reliable information can often reduce the prospect of conflict. New computer models can generate long-term property and support profiles that illustrate how settlement plans work for both spouses over the decades. This enables a wise and durable settlement. That's why an increasing number of divorcing people are opting for this type of more detailed financial workup.

Q. How is it determined which of our property is marital and which is separate?

A. This is covered under Part I of the Ontario Family Law Act. These matters are canvassed in the first phase of financial disclosure in which important information concerning the nature, circumstances, and timing of any particular acquisition are thoroughly discussed.

Subject to special rules concerning the matrimonial home, premarital assets or entitlements are generally excluded from specific net family-property division. Similarly, an inheritance or estate gift would be identified and separated from the marital accounting. Since the recognition of these matters supports your best financial situation, it is extremely important to fully participate in the detailed work of preparing your financial statement or disclosure information. These learning conversations with your lawyer not only assist in the law-model equalization formula under the Ontario Family Law Act but also advance your understanding of the best financial and practical plans for successful transition through financial reorganization.

Q. What if we try divorce mediation and it doesn't work out? Do we have to go to court, or are there other options?

A. Let's think of family dispute resolution as a spectrum. On one side, there is bilateral negotiation between the spouses, or they may be assisted by a mediator who helps with their communications and settlement. The parties retain control over their own process. They may use a mediator or family lawyer for independent legal advice, but it's their process and they are empowered as the decision-makers. On the other side of the spectrum is litigation, and this is where the decision-maker is now a judge. That judge may be assisted by legal counsel, but the mandate is as a third-party decision-maker. Between these process points of negotiation\mediation as apart from court, there is a range of other possibilities in balancing the party's control over their own process structure which can include collaborative family law, a hybrid mediation-arbitration model (med-arb), cooperative negotiation, or family arbitration. These options may include specially trained individuals or specific residual issue resolution arrangements, but any such professional intervention respects the important dimension of the clients retaining control over their process decisions, timing, and settlement. Out-of-court processes generally seem more responsive to the client's interests and timing than the public domain of court. At the same time, litigation may be considered appropriate as the necessary choice for reasons pertaining to the protection of the court.

For the most part, however, court is viewed as the option of last resort. So no, you would not need to go to court, although court may be viewed as a dispute-resolution option. In the event that the divorce mediation is at an impasse, you and your lawyer are more likely to consider a change of private family-dispute resolution, perhaps enlarging to a human-relations mediator for parenting issues or a family arbitration for any remaining financial issues. That's the special attraction of the mediation: it's adaptable to particular challenges that may develop in the client's determined approach to get it done in a timely manner. A competent family mediator would be open to the parties' consideration of other process options and may very well organize independent legal advice by the respective counsel on the point of the most effective next step. In my 18 years of experience as a divorce mediator, I have rarely if ever witnessed the jump way over to the extreme of court, at the first impasse.

Q. Are the services of a mediator or lawyer at MACLEOD BOYLE & GODBOUT MEDIATION CHAMBERS professionally insured?

A. Yes. Professional coverage is provided through errors and omissions policies applicable in the field of law and mediation. There is absolute compliance with practice requirements governed by the Law Society of Upper Canada and/or the Ontario Association of Family Mediation.

Q. I’m sure I do not want my case to go to Court but I am not sure which alternative dispute or issue resolution process is appropriate to my situation. How can I proceed?

A. A complimentary assessment interview is held to facilitate your choice of an appropriate service delivery given the specific presenting factors in your situation. In the small percentage of cases where litigation appears probable (e.g. involving domestic abuse, Restraining Orders, etc.) general information for referral to other legal counsel is provided. There is no financial cost or obligation with respect to the assessment or referral service.

Q. Are all cases accepted?

A. No. Although MACLEOD BOYLE & GODBOUT MEDIATION CHAMBERS provides a broad range of services which fill the needs of the largest segment of separating spouses there are some significant factors which could prevent our professional intervention. As previously stated, there could be serious safety risk issues. Other circumstances demonstrate limited capacity which is generally contraindicative to the moderate to higher functioning capacities associated with MACLEOD BOYLE & GODBOUT MEDIATION CHAMBERS’ settlement based strategies. These aspects can be fully discussed with the benefit of straightforward recommendations at the assessment meeting.

Q. Is the assessment meeting mandatory?

A. No, but all cases do require some preliminary attention to the strict specifications of each of these very different settlement processes. Sometimes, in the case of uncontested divorce, the preliminary consultation does not exceed 15 minutes. However, generally any marital situation involving the wide range of rights and remedies arising from the marriage (including children’s parenting and financial plans, spouses’ financial and property situations) takes longer to format the right process for your particular circumstances. As well, we need to assess the informed negotiation capacity of potential participants with respect to these facilitated self-help settlements. Our experience is that an open and frank discussion provides a solid foundation for collaboration which advances full settlement and complete client satisfaction.

Q. Can we do the assessment on the telephone or be email?

A. No, we use a systemic approach to settlement which can only be facilitated through personal interviews. We cannot ensure necessary professional attention to mandatory requirements of confidentiality, neutrality, impartiality and ethical or legal duties in an unstructured environment. Our clientele is self-selecting, proactive consumers actively engaging in their own choices and decision-making. Accordingly, there must be a willingness to invest a reasonable amount of time for this crucial decision.

Q. Can we start the scheduling process by telephone or email?

A. Yes, but your request will be followed up by an experienced law clerk who will obtain standard information for the assessment consultation because all conferences are by appointment only. See Client Information.

Q. I/We have used my/our lawyer as a general practitioner for years. Can I/we use him/her?

A. It depends. It’s your decision and you may wish to canvass this decision with that lawyer. Firstly, MACLEOD BOYLE & GODBOUT MEDIATION CHAMBERS will never directly or indirectly induce a breach of contract. If you have already retained a lawyer, then you have already made that decision. The only processes which could be provided through MACLEOD BOYLE & GODBOUT MEDIATION CHAMBERS are family mediation and uncontested divorce. Your lawyer may agree to participate in the limited but important role of independent legal advice (ILA). The applicable professional standards in mediation and uncontested divorce require our detailed discussion of ILA. Our experience is that the best lawyers in general practice or specialized other areas of practice respect our proven reputation and low costs. These lawyers abide by the same principles of client-centered legal services.

Q. What are the financial costs?

A. Uncontested divorce has a block fee of $890.00 plus disbursements [Court costs include the issuance of Application ($167.00), the Continuing Record ($280.00), and the Certificate of Divorce ($19.00), while there are added disbursements of GST, postage and photocopies], for a total of $1,421.00. Family mediation or collaborative and Cooperative Practice is billed at the rate of $295.00 ( Nigel Macleod). These are all subject to material complication. We do accept VISA.

Q. How do these costs compare with costs for contested matters?

A. Experience with interest-based form of negotiation reveals comparative costs potential at approximately 1/10 to 1/30 of costs of contested litigation (assumption based on minimum estimate of representation through trial duration of at least two days, i.e. $25,000.00-$35,000.00). The average uncontested matter proceeding through the least efficient option being Cooperative Practice will not project this comparative difference; however, with the assumption of one procedural or contested Motion, the settlement savings exceed 50% of such contested costs. These are general averaging assumptions which cannot be read to override the specific cost features discussed in your particular case in the assessment procedure. There are numerous independent factors which can operate to minimize or increase the standard financial costs. At the same time, many of these features are within the joint and individual control of the spouses. Accordingly, accountability in financial management begins with your responsibility in averting the additional expense and uncertainty of Court proceedings.

Q. Is there an average or standard type of costing?

A. Experience indicates that an average mediation covering comprehensive issues or wide subject matter (parenting, financial, support arrangements, matrimonial home possession/property and property settlement separation arrangements) to average 5 hours (add a further 1 hour for drafting and ½ hour for read through of Memorandum of Agreement). Average collaborative law cases estimate 5-10 hours. Average cooperative lawyering 7-12 hours. Estimates are statistically variable due to particular involvement by other lawyers. In any event, mediation and collaborative law are by nature more effective due to specific communication dynamics inherent in those processes. As well, this service delivery excludes participation by non-specializing (i.e. lacking experience and skills capacity in interest-based negotiation) lawyers.

Q. Is there a guarantee that we will settle?

A. No, but the probability for success will be discussed during the assessment process. Experience indicates remarkably reliable results but applicable ethical conventions in the industry prevent reliable and verifiable results with statistical accuracy. We are presently compiling statistically reliable information for further discussions.

Q. Are there any discounts available?

A. Yes. All clients that provide us with a completed consumer questionnaire/evaluation will immediately be entitled to a 5% adjustment in total fees in the case of mediation or Cooperative Practice. In the case of collaborative law, there is a further 5% adjustment. The block fee for uncontested divorce processing has already been adjusted to $890.00.

Q. Is the evaluation questionnaire confidential?

A. Yes, but full acknowledgements and testimonials are encouraged. In any event, any further publication with any form of identified disclosure requires consent from parties (except in the case of cooperative lawyering). Moreover, in any case involving children, the evaluation will be neutralized to generate some general consumer feedback without specific identification (regardless of purported consent).

Q. What is collaborative family law?

A. It is a process of legal separation or divorce in which both parties and their collaborative family law lawyers pledge in writing to resolve all issues by agreement without the involvement of the Court. The emphasis is on finding mutually agreeable solutions rather than engaging in a protracted legal battle.

Q. Am I represented by a family law lawyer in collaborative family law?

A. Yes, both parties retain collaborative family law lawyers. In addition to consulting privately with your collaborative family law lawyer, you will participate in four-way meetings with your spouse and his/her collaborative family law lawyer. The purpose of this is to maintain an atmosphere of cooperation and open communication so that a settlement can be reached that meets the needs of all family members.

Q. Are other professionals involved in the process?

A. Yes. Collaborative family law is true to its name in that it involves the counsel of child and family specialists and financial advisors. You would be open to discussing these resources. Then you will meet with these other professionals as needed.

Q. What makes collaborative family law different from other divorce processes?

A. Collaborative family law recognizes that a marriage may be ending, but that relationships and obligations continue, especially when the family includes children. It seeks to replace the adversarial approach of the typical divorce with a more respectful process that preserves the dignity of both parties. Collaborative family law is a solutions oriented approach that helps couples create a settlement that addresses their family’s individual needs.

Q. Is collaborative family law less expensive than traditional divorce?

A. It can be. The process is designed to be more efficient, with four-way meetings between the parties and their collaborative family law lawyers facilitating a settlement. Collaborative family law eliminates the multiple Court appearances and conflict that are often part of traditional divorce, thereby reducing the emotional and financial costs.

Q. What happens if agreement cannot be reached and one or both parties want to pursue a Court battle?

A. The spouses and collaborative family law lawyers are bound by a written pledge not to go to Court. If agreement can’t be reached, collaborative family law lawyers may suggest bringing in mediators to facilitate a settlement. However, if one or both parties wish to litigate, both collaborative family law lawyers are legally obligated to withdraw from the process and can no longer represent their clients. This means that both spouses have to hire new family law lawyers and follow the traditional divorce process through the Court system, adding substantial conflict and expense to the divorce.

Q. How can I be sure that my spouse will disclose all necessary information under collaborative family law?

A. Collaborative family law assumes that both parties will act in good faith. They agree to this at the start. If one party fails to be honest about any information, it could threaten the continuation of the process under collaborative family law.

Q. Who practices collaborative family law?

A. A lawyer who is a member of The Collaborative Law Network affiliated with the Ontario Collaborative Law Federation will have family law experience. In addition, the lawyer will have received special training in collaborative family law. Nigel Macleod is an active member of The Collaborative Law Network and can provide information on your spouse’s collaborative law referral in the complimentary assessment procedure.

Q. What is a client-centered process?

A. The opportunity to choose the right process so that the family can work together in their own best interests. Moreover, there is no fixed systems response. Let’s talk about what resources you need. Other services are available to integrate within your chosen process. What about evaluators, child specialists, financial or tax consultants and divorce coaches? It’s your situation; what do you think? Client-centered means you choose a process that works for you. Our work aligns with your leadership in coordinating these information and professional resources for a wise, durable and positive step in this critical point in your family and history. That is why we refer to our service as collaborative dispute resolution which guarantees information, control and safety.

Q. What is the family law arbitration formal hearing procedure?

A. In a courtroom-like procedure is followed, one may expect the following:

1)   When the arbitration hearing commences, any preliminary questions or objections will be dealt with.  For example, does the arbitrator have jurisdiction under the agreement to hear the dispute?  Is the appointment proper?  Is the arbitrator biased?  This is the time to raise such issues.

2)   After preliminary matters, the applicant commences by outlining an overall position.  This will specify the remedy which the applicant is seeking and possibly the kind of evidence to be adduced.

3)   The applicant presents witnesses (or other evidence) to prove the claim in any order.  The applicant’s documents and exhibits will generally be introduced through witnesses unless there is an agreement otherwise.

4)   Immediately after each of the applicant’s witnesses have testified, the respondent is given an opportunity to cross-examine that witness.

5)   The applicant is then given the opportunity to “clarify” anything which arises from the respondent’s cross-examination by “re-examination”.  Clarification is obtained by asking relevant follow-up questions to the witness.  No new ground can be covered and the re-examination is restricted to issues raised by the cross-examination. 

6)   After the applicant has completed the presentation of evidence it is the respondent’s turn to present its case.  Ordinarily, the respondent is given an opportunity to outline the opposing overall position and its witnesses are then presented in whatever order the respondent chooses.

7)   Immediately after each of the respondent’s witnesses has testified, the applicant is given the opportunity to cross-examine each witness.

8)   The respondent is then given the opportunity to “clarify”, by re-examination, anything which arises from the applicant’s cross-examination, just as the applicant was able to do earlier.

9)   When all of the respondent’s witnesses have completed giving their evidence, the applicant proceeds to “argument”.  This means that the applicant has the opportunity to summarize facts which have been proven and to provide legal reasons why the arbitrator should rule in favour of the applicant.  The argument can be based on past arbitration cases, statutes, legal decisions, equity, common sense and facts established at the hearing.

10) After the applicant has completed argument, the respondent is given the opportunity to “defend” the opposing position.  Like the applicant’s argument, the respondent’s defense can be based on past arbitration cases, statutes, legal decisions, equity, common sense, and facts established at the hearing.

11) The final word usually goes to the applicant in “reply”.  Here the applicant is given an opportunity to meet any of the issues raised by the respondent but this “reply” argument is restricted to matters raised by the respondent in the respondent’s argument.

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Q.  What is the Family Law Arbitration boardroom procedure?

A.  The boardroom procedure is best described by Harold J. Wilkinson as follows:  “The customary rules of debate are usually observed.  The claimant speaks first through its principal spokesman, who calls on various witnesses present to corroborate or respondent whose principal spokesman presents its case, calling on its witnesses to corroborate or explain points that he makes and to refute the points made by the opposition.  After this, the claimant is given an opportunity for rebuttal in which it can argue any points raised by the respondent which were not covered in the claimant’s original presentation.  There must be opportunities during the process for cross-examination of witnesses, which is usually done by the lawyers present before discussion concluded on each item.  The arbitrator may then have some questions, and he may permit additional discussion and debate until he feels that the subject has been adequately discussed for him to understand it.  The hearing then moves on to the next item, and the whole process is repeated.  Customarily, the arbitrator will not render any award on any item until he makes his formal written award at the conclusion.  However, each arbitration is unique and the arbitrator must do what he must do to settle the dispute expeditiously.”

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Q.  What is a domestic violence screening report?

A.  Screeners will often use one or more of the tools listed in the section on required training.  It is desirable that screeners be chosen who have experience in dealing with issues of domestic violence and power imbalances.

The screening report will normally recommend in favour of or against arbitration.  It may also recommend arbitration if certain safeguards are put in place, such as that the parties not be left alone together or not arrive or depart together or that special procedures for giving evidence be used.

If the results of the screening suggest that arbitration not be used, steps may be required to provide for the safety of the party found to be subject to abuse.

As a matter of principle, an arbitrator does not meet with the parties separately or get information from one that the other does not know about.  An exception to this is that new screening requirement, which requires the arbitrator to receive a report that is not shared with both parties.  The report may be used only to determine suitability for arbitration and safety issues.  The report is not to be used to decide any issue in the arbitration, including credibility of the parties.

A number of strategies may be employed to prevent any perception of partiality on the part of the arbitrator:

• At the time arbitration agreement is being negotiated, the parties could ensure or the arbitrator could ask that it include a specific acknowledgement that the arbitrator will see screening reports of each party for domestic violence and power imbalances, and this does not affect the ability of the arbitrator to be neutral.

• The Parties or the arbitrator could specify that the screening report address only the parties’ fitness for arbitration only and answer the question: should this dispute proceed to arbitration or not?  Under what safeguards? The back-up information need not be provided unless the arbitrator calls for it.

Since there is no prescribed screening process and no prescribed screening report, arbitrators have considerable flexibility in how this step is undertaken.

While the arbitrator will normally follow the recommendations in the screening report, he or she is not legally bound to accept them.

In particular, parties may choose to continue the arbitration even if the screening report recommends against it.  However, there is considerable risk in such a case that the eventual award may be hard to enforce if the vulnerable party argues that she or he continued the arbitration unwillingly.

Preceding extract obtained through the Ministry of the Attorney General for the Province of Ontario: Screening For Domestic Violence and Power Imbalances Provided By: Michelle L, Hayes, B.S.W., M.S.W., R.S.W.