FAMILY LAW PACKET INDEX

ABOUT THIS PACKET

YOUR RIGHTS AND OBLIGATIONS

THE PROCESS

ABOUT LAWRENCE S. PASCOE

My Service Principles — The Pascoe Difference
Resume of Lawrence S. Pascoe
The Client and Lawyer Relationship
Client Preference Questionnaire (Will link to interactive form)
Fees, Disbursements, Procedure and Timing for Uncontested Divorce
Retainer
Client Survey Contest

APPENDIX

I have been practicing family law since 1977. As my resume indicates, my competence has been recognized within my profession by my teaching, writing and speaking achievements. I continually receive positive feedback and referrals from clients and other lawyers. I have email, my address is lspascoe at thepascoedifference.com. I also have a web site at http://www.thepascoedifference.com. I try to be unique, innovative and client oriented. This packet is an illustration of all three of those qualities. I use the same approach when representing a client. A major component of my service is the Family Law Client Manual. ABOUT THE FAMILY LAW CLIENT MANUAL

Creating a good lawyer-client working relationship is extremely important. A good rapport between lawyer and client makes it easier for the client to handle the emotional strain that matrimonial breakdowns may cause. A good relationship also produces better results as the lawyer needs the client’s help to represent him or her more effectively. The Family Law Client Manual contains government pamphlets and articles that I have written including subjects of a very practical nature. There is information about preparing the financial statements (with a detailed example) and affidavits, lawyers’ fees, and the many activities in the matrimonial legal process. These articles repeat and supplement the discussions in consultations. There is so much information for the client to absorb that it is helpful to have information in writing. Another purpose of the manual is to help organize my clients by holding, in a convenient and easily accessible location, all the important letters and documentation. I ensure that my clients obtain copies of all relevant material. The manual is indexed and separated by dividers. FEES

My fees are based on the time spent on a file. My hourly rate is $300 an hour (plus GST). I try to estimate the costs of the various stages in the process. An article on legal fees in the manual discusses this subject in greater detail. An initial retainer is generally $1,000.00 which covers four hours of work. At the first consultation I either receive the $1,000.00 retainer or the client pays me for the consultation at my hourly rate. A file is not opened nor work performed without receiving a retainer. Once the initial retainer is used further advances are requested.

Thank you for requesting my Family Law Packet. I would remind you that the articles and publications are for general information and are not intended to be a substitute for legal advice. If I can be of further assistance please call me or my staff for an appointment.

— LAWRENCE S. PASCOE

How does a court decide which parent has custody and which has access?

The Children’s Law Reform Act states that both a father and a mother are equally entitled to custody and that the best interests of the child will dictate who has custody and what are the terms of access (visitation). The act sets out specific criteria which include the emotional ties between the child and the person claiming custody or access, the length of time the child has been in a stable home environment (status quo), the preferences of the child, and the plans for the proposed care and upbringing. Unless relevant to one’s parenting abilities, the past conduct is not relevant in determining custody and access.

What resources are used to help decide custody and access?

The court may order that the children be represented by their own lawyer. The provincial government’s Attorney General’s ministry has a department now called “ The Children’s Lawyer” . It was formerly called the Official Guardian. This department has trained lawyers in all cities to be able to represent children in custody and access disputes. In many, but not all cases it will agree to appoint a lawyer to represent a child. The lawyer would advocate the child’s position to the court though that position is not binding on the court.

The court may also order that there be a psychological assessment of the children and all the parties. A trained psychologist will interview everyone and make a report to the court with recommendations as to the terms of the custody and access. Though very persuasive, this report is not binding upon the court.

What is the difference between sole custody and joint custody?

There are three aspects to custody — who is the primary care giver and has the primary residence of the child, who makes decisions about the child, and who has the right to information regarding the child. In a sole custody situation one parent is all three though the non- custodial parent should be given the right to information. In joint custody both parents make the decisions relating to the child’s health, education, religion and extra-curricular activities and both have a right to information regarding health and education. Joint custody does not necessarily mean that a child spends an equal amount of time at each residence. It is very common to have a joint custody arrangement with one parent having the primary residence. Unless the parties agree the court does not usually force by order a joint custody arrangement on the parents though it can and sometimes does so.

What is a normal amount of access?

Present standards would entitle a non-custodial parent to have access every second weekend from Friday after school to Sunday evening (or Monday evening if it is a long weekend), one evening per week, 50% of the Winter, Spring and Summer vacations. Unless there is a very good explanation that amount of access will be ordered.

Is access a right or an obligation?

Unfortunately for the custodial parent access is really a right and not an obligation. If the non-custodial parent does not always take the access visits agreed to there is not much a custodial parent can really do. If the non-custodial parent is continually absent the court might make an order reducing the amount of access.

Can custody and access orders be changed?

If there is a material change in the parties circumstances a court may change the terms of the custody and access arrangements. As a child gets older he or she may want to live with the other parent for a variety of reasons. If there is a move to another city the terms of the access would have to be changed.

Does a child have a say in the custody and access arrangements?

Once a child is old enough, usually at least a mature ten year old, the court may take into account the child’s wishes. The child may even have their own court appointed lawyer. The child’s wishes is only one, though important, consideration. It is really unfair and hard on a child, however, to put pressure on him or her to decide the custody and access. As discussed above, children may be represented by their own lawyer. Parents should refrain from involving their children in the decision making process on marriage breakdown. Also a child should not decide whether or not to go on an access visit. The custodial parent can not refuse access simply because the child does not want to go.

What happens if the custodial parent is moving to another city?

It is not automatic that the custodial parent may take the child with him or her if that parent moves to another city. The court generally does allow the move. However there are cases where the court found that the relationship between the non custodial parent and the child was so strong that a move would not be in the best interest of the child. The reasons for the move must be legitimate and not just a means to reduce access. Having joint custody would not automatically prevent the court from allowing a move.

Can a custodial parent change the name of the child without the consent of the non custodial parent?

Yes, changes in the law a few years ago allow the custodial parent to do so unless a separation agreement specifically stated that such a name change is not allowed without the non custodial parent’s consent. In a joint custody situation therefore such a change would not be allowed.

* This article can only provide a general overview of a legal topic. Readers should consult a lawyer and not simply act on the information provided in this article.

** Copyright © Lawrence S. Pascoe, March, 1995

NET FAMILY PROPERTY: To arrive at the net family property, you first start with the value of all property each owned on the date of separation. Every conceivable type of property is included, including the right to a pension (which has a value considerably more than just one’s contributions). From this value is subtracted the debts of each party on the separation date. From that figure, you subtract each party’s net value of assets owned on the date of marriage except for the value of the matrimonial home (that is still a matrimonial home on the date of separation). Then from this amount, specific excluded property is subtracted so to give each party’s net family property. The equalization payment is therefore, one-half of the difference between the two net family properties.

EXCLUDED PROPERTY: The Family Law Act states that certain types of property are to be excluded in the calculation. These properties are basically gifts or inheritances from a person other than one’s spouse, the income from gifts or inheritances where the donor of the gift specifically stated that the income was not to be net family property, settlements from personal injury actions and life insurance proceeds. Also excluded is property other than the matrimonial home that was obtained with excluded property. Therefore, if an inheritance is spent on a vacation or used to pay down the mortgage on the matrimonial home, the inheritance is not excluded in the calculation, whereas if the inheritance is put in the bank, it is excluded.

UNEQUAL DIVISION: The Court has the power in certain circumstances not to follow the formula, but to make an unequal division. This can occur when; there was an agreement between the parties; when the marriage was less than five years; when one spouse recklessly depleted his or her assets or incurred debts; or, when there was nondisclosure of debts when married. Improper conduct is not a reason to make an unequal division.

— LAWRENCE S. PASCOE

* This article can only provide a general overview of a legal topic. Readers should consult a lawyer and not simply act on the information provided in this article.

** Copyright © Lawrence S. Pascoe, March, 1995

THE GUIDELINES: The guidelines are a set of tables and a set of rules that prescribe the amount of child support a non-custodial parent should pay to the custodial parent. Tables set forth a specific amount of support depending on the income of the non-custodial parent and the number of children. Rules set out when and how the amount in the table should be modified to address special situations. The guidelines also dictate the determination of the payor's income, the variation of support orders prior to the Guidelines and the requirements for the parties to provide information about their incomes and expenses.

THE PURPOSES OF GUIDELINES: The four objectives of the guidelines are (1) to establish a fair amount of support for the children of divorced parents (2) to reduce conflict by having the amount of support more objective (3) to improve the legal process by providing guidance in setting the amount of child support (4) to ensure similar treatment for similar situations.

BASIS OF THE GUIDELINE TABLES: The tables are based upon the average costs of raising children. As those costs vary with income, the amount of support varies with income of the non-custodial spouse. The income of the custodial parent is not considered in the table. The reasoning is that the custodial parent will spend a similar share of his or her income to meet the costs of raising the children. The tables are based upon a tax system where the support payments are not tax-deductible to the payor or tax-includable for the recipient. This was not the law prior to the Guidelines. The Income Tax Act was also changed to allow for the new tax treatment of child support payments.

THE EXCEPTIONS IN THE GUIDELINES: Certain situations allow the court to deviate from the amount set out in the tables. Those situations are specifically defined in the guidelines or directly in the Divorce Act. The guidelines set forth what should be considered in determining the new amount though not always by a specific arithmetic formula. The following are brief explanations of the exceptions.

Previous order or agreement benefiting a child: The court may order an amount different from the table if it finds it would be fair to do so because in a previous order or agreement there was a property transfer or a financial responsibility that directly benefited the child.

Incomes over $150,000: The court may extrapolate from the table or it may use the previous method of considering the income and needs of both parties and the children. Generally the courts do not divert from the table.

Children over the age of majority: The court may use the tables. If, however, it believes the table amount is inappropriate it may use the previous method of considering the income and needs of the parents and the child over the age of majority (which in Ontario is 18). The courts have not followed a consistent approach to this issue.

Special or extraordinary expenses: The court may order a parent to pay for certain expenses beyond the amount set out in the table. Those expenses are: (a) child care expenses; (b) extraordinary medical expenses; (c) post-secondary education expenses;

and (d) extraordinary extracurricular activities. These expenses are to be shared in proportion to the parties' respective means. These expenses are figured out after tax and subsidies are applied. The courts have not been consistent as to what are defined as extraordinary expenses.

Undue hardship: The court may deviate from the table amount of support if it finds there is undue hardship because of four defined circumstances: (1) one spouse has assumed a proportionally high amount of debt from the marriage; (2) access expenses are unusually high; (3) one spouse must support another person under a court order or separation agreement; and (4) one spouse has a legal duty to support another child (a second marriage situation).

In determining the new amount of support, the court must ensure that the household standard of living of the spouse pleading undue hardship is not greater than the household of the other spouse. There is a prescribed test in the guidelines to decide the standards of living. A court must give recorded reasons if it deviates from the table because of undue hardship.

Split Custody: The support will be the difference between the amount each spouse would pay based upon the table and the special or extraordinary expense determination.

Shared Custody: The court may deviate from the tables after considering the appropriate amounts set out in the tables, the extra expenses of a shared custody arrangement and the means and expenses of all the parties. The courts have not been consistent in dealing with shared custody.

DETERMINATION OF INCOME: The guidelines set out specific rules to determine the income of the payor spouse. The rules start with income that would be reported on an income tax return. Income then may be adjusted under certain circumstances to reflect fairly what monies are available for the payment of support. Those circumstances include the situation where the payor spouse is a shareholder, officer or director of a company, or where the income is increasing or decreasing for three years. Courts may also impute income for many stated reasons. Some of those cases include intentional unemployment or under employment, where assets are not being properly utilized, where there has been a failure to reveal income, or where there is a different tax rate than normal.

VARIATION OF SUPPORT ORDERS AND AGREEMENTS: These guidelines may apply to all agreements and orders retroactively to the date that the guidelines become law. An application to vary should be made if an outstanding agreement or court order amount of child support is different from what the guidelines will state.

OBTAINING FINANCIAL INFORMATION: The guidelines require the recipient spouse of an application to file specified financial documentation. Such documentation includes tax returns, notices of assessments and reassessments for a three year period, a statement of earnings from an employer, financial statements where the spouse is a self-employed business or controls a corporation and confirmation of income when a spouse is a partner of a partnership. An applicant spouse must also file that information if his or her income is an issue under the guidelines such as in the issues of special expenses, undue hardship and incomes over $150,000.

Failure to comply with the disclosure requirements will result in an adverse inference against that party or an order to comply. Failure to comply with an order to produce documents may result in an order to strike that party's claim, a contempt order, an adverse inference at trial or an order for costs.

CONCLUSION: The introduction of the Child Support Guidelines in 1997 was a major change to Family Law in Canada. They resulted in fairer, more objective and more consistent support agreements and orders. They have reduced the emotional and financial costs of spouses separating. Unfortunately in some areas such as joint custody, extraordinary expenses and children over 18 the law is not as and clear as I believe it should be. Those areas are still often litigated.

                                                                                              LAWRENCE S. PASCOE

*This article can only provide a general overview of a legal topic. Readers should consult a lawyer and not simply act on the information provided in this article.

**Copyright Lawrence S. Pascoe, February, 2005

There are a number of methods in a family law matter that the spouses may use to come to a resolution of the terms of their separation. The purpose of this article is to explain briefly the different methods by outlining how they work and what are the advantages and disadvantages of each method. There are five distinct processes, however, they are often used in combination of each other although one method usually predominates when they are used in combination. The five basic methods are: (1) Client/Client negotiating; (2) Mediation; (3) Collaborative Law; (4) Lawyer/Lawyer negotiating and; (5) Court Proceedings.

1. Client/Client Negotiating:

Often on marriage breakdown, clients will discuss with each other what they believe are fair terms of how they should deal with the children, divide up the assets and pay support. They may or may not obtain advice from lawyers as to whether or not their agreement is fair. They may or may not put their agreement into writing in the form of a separation agreement.

The advantage of this method is the low cost since they are not paying for lawyers. Usually this method is faster than the other methods, and the clients have control of the process. But the major disadvantage is that the clients are not lawyers and do not know what their rights and obligations are. Therefore, they may not come to a fair settlement. If one party is more aggressive than the other, the agreement might not be fair. If there is no agreement and there is spousal support they will not be able to take advantage of the tax breaks that spousal support may provide.

The clients might start off with this method and then retain a lawyer for advice to confirm their agreement is fair and to have that agreement put into writing. The major problem with starting with this method is that the clients may agree to something that they think in their own minds is fair but then they discover when talking to a lawyer that they have given up rights. These rights may be more difficult to get back in the ensuing negotiations. In this process there is often not complete financial disclosure of assets and income may be hidden. It is not recommended as the primary method but spouses will generally talk with each other about what they expect with the separation.

2. Mediation:

Mediation is a method whereby the two clients negotiate the terms of their settlement of their marriage breakdown with the help of a third party mediator. The mediator is in effect, a referee between the parties. A mediator cannot give legal advice. Each party in mediation will still obtain their own lawyers to obtain legal advice but the lawyers will not be involved in the negotiations. The clients will negotiate, with the help of a mediator. The mediator is generally trained and is often a lawyer for the financial issues and a mental health professional for the custody issues.

An advantage of mediation is that it will most often be less costly than going to Court. The clients must be aware that it is generally more costly than getting a settlement through lawyer negotiations and can be quite expensive itself if the mediation is lengthy.

Mediation can be done relatively quickly although not as quickly as lawyer/lawyer negotiations. The mediator's and clients' schedules must be taken into account and the clients still need to see a lawyer for their basic rights and obligations.

There is a high degree of participation by the clients. If the clients are educated by the mediator, often with respect to parenting issues, the process can be somewhat therapeutic. A spouse has the opportunity to express their feelings in a controlled setting in front of a mediator. The mediated settlement is bound to work better in the long run than Court imposed resolutions as the parties have a interest and say in the decision rather than having it imposed upon them.

The disadvantage of mediation is that it can be costly if the parties have difficulty coming to a resolution/agreement. The communication aspect in mediation can be a little cumbersome as each party has to go back to their lawyer for opinions. Sometimes mediation is a waste of time as one client had no intention of compromising and only used mediation in the hope that the process would result in settling on the terms that that person wanted.

A good mediator will ensure that the parties are on an equal bargaining level but sometimes the more aggressive spouse will be able to get a better deal for themselves by pushing their position more strongly. This method is very appropriate for parenting issues but not always for contested financial issues.

3. Collaborative Law Method:

Collaborative law is a new process formulated by practicing lawyers to take the best of mediation, lawyer/lawyer negotiation and client/client negotiation. In terms of time and costs, this process has major advantages over the Court action process.

The basic concepts of collaborative law are as follows:

a) the parties and their lawyers use four way meetings to discuss a resolution;

b) the parties and their lawyers commit themselves at the beginning of the process that they will resolve the terms of the separation co-operatively without the need to go to Court. This is done by the clients and the lawyers signing an agreement stating that if it is not resolved by the lawyers and their clients, then the clients must retain another lawyer to take the matter to Court.

c) the lawyers are trained in the collaborative law process and are associated with a network of collaborative law lawyers.

The advantages of collaborative law are many. There is a high rate of participation by the client. It is the best form of communication of all the systems because all of the parties are in the same room at one time. Misunderstandings and positions can be explained and understood. As lawyers are present, there is less chance of a spouse being aggressive and a greater chance of preparing a settlement.

Costs are lower than taking the matter to Court, however, more costly than the lawyer/lawyer and client/client method, and most likely the same costs of mediation. There is less stress on the parties in knowing that if there is a breakdown of negotiations, one is not immediately going to be in Court because the parties have to seek new lawyers to start the Court action.

There is more of a commitment to resolve the matter than in mediation and lawyer/lawyer because there is bound to be more expense and time if the process fails.

Some may also say that there is far more of an interest on the part of the lawyers to settle the matter because they will lose the file if there is no settlement.

Not all lawyers are collaborative law lawyers so this method cannot always be used as both lawyers must be collaborative law lawyers.

4. Lawyer/Lawyer Negotiating:

This is the most common method to process a matrimonial dispute and often the one that is the starting point. Each client retains a lawyer. The parties exchange, through their lawyers, financial information and their positions to resolve their matrimonial dispute and to exchange their positions as to what should be in the settlement through a separation agreement. The lawyers will then negotiate based upon the instructions of their client as to what the terms will be. The separation agreement is drafted by one of the lawyers and approved by the other lawyer, after consulting with their client. This is usually the least costly method next to the client/client process. It is generally the fastest method.

The level of client participation is not as high as mediation and/or collaborative law, but still has client control of whether to accept the agreement or not. It is not as therapeutic as mediation or collaborative law because there is not face to face discussions with the spouse and for the same reason, communications may get crossed up because of the fact that information goes from the party to the lawyer, to the other lawyer and back to the other party.

This method should be used to start the process and then depending on the case, mediation, collaborative law or court action might be used.

5. Court Action:

If, after lawyer/lawyer negotiations, mediation, collaborative law or client/client negotiations, the parties still cannot agree on the terms of their separation, then a Judge will have to decide those terms.

There are not many advantages to this system other than it is the method necessary when the parties cannot agree through the help of a mediator or a lawyer. It is very costly and can wipe out a large portion of a person's assets. It can be lengthy. It is stressful for the client. Often the losing party is not happy and will do their best to work against the decisions. However, this method is often necessary because the parties are too far apart on what they believe is a fair settlement. Often, however, Court action is started just to prompt the other party to deal with the negotiations and after starting the action, or after one or two steps in the action, the matter settles. Only a small percentage of Court actions proceed to trial.

Conclusion:

Which process to use depends on the issues and the parties. If custody and access are in dispute, then a mental health mediator will probably be the best to use in that instance. For the methods of client/client negotiations, mediation and collaborative law, both the parties must be in agreement otherwise the process will automatically default to start with lawyer/lawyer negotiating (or lawyer/opposite client negotiating if the client refuses to get a lawyer). If the parties simply cannot agree after lawyer/lawyer negotiations, the Court action method will be employed.

For more detailed explanation of the many processes of family law, please read my more detailed articles and government pamphlets. Visit the web sites of mediators and our local collaborative law network at www.collaborativelaw.ca to receive further information.

6B. COMMENCEMENT OF LEGAL PROCEEDINGS INCLUDING INTERIM PROCEEDINGS
or

6C. MEDIATION (can be at a previous or later stage) AND OPTIONAL IF NO SETTLEMENT
6D. APPOINTMENT OF OFFICIAL GUARDIAN (in disputed parenting cases)
6E. PSYCHOLOGICAL ASSESSMENT (in disputed parenting cases)
6F. OFFER TO SETTLE (can be made at any stage of the process)
7. NEGOTIATIONS — If successful then 6A
8. CROSS EXAMINATIONS ON FINANCIAL STATEMENTS AND AFFIDAVITS (Optional)
9. NEGOTIATION — If successful then 6A
10. INTERIM MOTION HEARING (optional and for only some issues) (possible to appeal but unlikely to appeal)
11. NEGOTIATION — If successful the 6A
2. EXAMINATIONS FOR DISCOVERY
13. NEGOTIATION — If successful then 6A
14. PRETRIAL CONFERENCE
15. NEGOTIATION — If successful then 6A
16. TRIAL
17. APPEAL TO COURT OF APPEAL (if one party not satisfied with the decision)
18. ASSESSMENT OF COSTS (if awarded and amount not agreed upon)

Mediation is not marriage counseling that tries to get the parties back together. Mediation is not therapy that works to have a person accept the separation (although there are therapeutic elements to mediation). Mediation is also not an alternative to the legal system, but works within it. Lawyers are still needed to give advice and to review and sometimes draft the separation agreement.

In mediation, the spouses meet together with an independent mediator to work out a separation agreement. The mediator first ensures that all relevant facts are obtained and disclosed. Next, the unresolved issues are discussed with the couple deciding objective criteria to resolve those concerns. The mediator, without giving specific legal advice, can offer legal information about the law concerning those matters. The mediator and the couple then proceed to create different options to resolve the issues and work out the consequences of those options. The parties then, with the help of the mediator, negotiate properly and fairly to come to an agreement. If an agreement cannot be reached, then the parties are free to try to settle the matter through their lawyers or let the court decide for them. The mediator does not dictate the agreement if the parties are unable to do so.

There are many advantages to mediation, which is why it is becoming a very popular process in marriage breakdowns. The total financial costs of mediation are far less than a legally contested dispute. The time period to resolve a dispute is far shorter than a legally contested dispute. As the parties have more of a role in arriving at their agreement, they are more likely to get along better in the future. They will, therefore, have less enforcement problems and changes to the agreement will be obtained more easily. The mediation process is therapeutic as a key element to ensure that the parties know and at least try to appreciate their spouses’ feelings and positions on the issues.

In mediation, there is a thorough “ hearing” of the case. All the facts, all the underlying emotional issues are placed on the table. This should result in a satisfactory decision by the parties. When lawyers negotiate, some of these matters may never get discussed. They may be lost in the back and forth communications as a husband talks to his lawyer, who then talks to the other lawyer, who then talks to the wife and then back through the chain again. If the matter goes to court, the judge, who will not have the same time to deal with the case as mediation does, may miss some facts and issues. The judge must come to a quick decision to resolve the case. Mediation can allow for compromises and more flexibility than a court decision. A court decision may be much more extreme than the terms that could have been mediated. Mediation, therefore, reduces the risks that the court process may present.

Mediation is highly endorsed by everyone involved in the Family Law system. In the Divorce Act, the Federal Government requires lawyers to discuss mediation with their clients. Ontario’s Family Law Act allows judges to order mediation in cases in which a judge believes it would be of help. Judges encourage mediation and participate in pre-trials that are a form of mediation. Lawyers are increasingly supportive of their clients who want to use mediation. They encourage clients in the appropriate cases to try mediation.

Mediation, however, is not for everyone. If there is a history of violence, then it probably would result in the violated party not being able to negotiate on an equal basis. If one party is psychologically not able to bargain as an equal, then mediation is not for that case. Mediators also believe that mediation is not appropriate where there has been child abuse. Of course, mediation is a wasted effort if one or both parties are not interested in listening and compromising so as to come to an agreement. Sometimes one or both parties use mediation as a stalling tactic or a forum to try to convince the other spouse that their stated position is right. However, that still leaves room for the greater majority of separating spouses to at least try mediation.

Presently a license to practice mediation is not required in Ontario. Mediators, therefore, may not have any formal qualifications. The national organization of Family Mediation Canada is working with provincial organizations such as The Ontario Association For Family Mediation to develop mediation as a profession. They have developed standards of professional conduct. Ontario’s Law Society has also developed standards for those lawyers who practice mediation.

Mediators are drawn primarily from three main professions — social workers, psychologists and lawyers. Training to be a mediator might depend on the mediator’s profession. Lawyers in Ontario, are offered a course through the Law Society. There are also courses offered privately and through universities to any person wishing to be a mediator.

Though mediators can cover all issues on marriage breakdown, many social workers and psychologists who are mediators restrict themselves to mediate custody and access disputes. Many lawyer mediators will restrict themselves to the financial and property concerns. Sometimes, mediators of different backgrounds will work in teams to mediate all the issues.

Mediators are found in private practice, social service agencies and court related services. Lawyers and mental health professionals would be able to recommend appropriate mediators. Mediators will charge fees for their services based on an hourly rate. That rate will vary depending on the profession of the mediator. Social service agencies involved in mediation will often base the cost on the incomes of the parties.

Mediators are not alternatives for lawyers. Mediators, even those who happen to be lawyers, are not supposed to give specific legal advice, but only general legal information. Mediators will want the clients to have legal representation for specific advice and perhaps to draft the final agreement. It is important that the clients attend at their own lawyers before they start mediation, so that they know their rights before negotiating. The lawyer is then on call during the mediation process to answer any questions the client may have. Lawyers should encourage clients to mediate when it is appropriate and not do anything that would jeopardize the mediation process.

* This article can only provide a general overview of a legal topic. Readers should consult a lawyer and not simply act on the information provided in this article.

** Copyright © Lawrence S. Pascoe, updated March, 1995

Action: The legal term for lawsuit.

Affidavit: A written statement of facts made under oath and signed before a lawyer. It is used primarily for motions.

Affidavit of Documents: The Court document setting out what documents a party has that are relevant to the case.

Alimony: Payment of support from one party to another. This term has been replaced by “ maintenance or support” and does not appear in any present day legal proceedings.

Answer: The document made in a divorce action that replies to the Application.

Appeal: The process whereby a higher court reviews the proceedings resulting in an order or judgment of a lower court and determines whether there is an error.

Applicant: The person who brings an application under the Family Law Act of Divorce Act by way of an application or the person who brings an application to vary any court order.

Application: The first pleading in an action for divorce or under the Family Law Act.

Barrister and Solicitor: A Canadian lawyer, as a barrister, the lawyer argues cases in court; as a solicitor, the lawyer practices in all other areas of law.

Book of Authorities: A book for the Judge containing the full text of the reasons for judgments which one party’s lawyer will argue shows a similar legal principle that should be followed in his/her case before the Judge.

Case Conference: A mandatory hearing before a Judge in order to obtain an opinion.

Certificate of Divorce: The document indicating a divorce has become final.

Cohabitation: Living together as spouses.

Cohabitation Agreement: A contract between spouses who agree to live together.

Contested Case: Any case in which there are one or more issues on which the parties have not agreed to.

Corollary relief: In divorce, a claim for relief in addition to divorce, e.g. support or custody.

Costs: A sum of money the court awards to the successful party to be paid by the unsuccessful party towards payment of the legal expenses of the successful party.

Cross-examination: A questioning of a witness under oath by a lawyer for the opposite party usually on an affidavit and financial statement for an impending motion.

Custody: The legal right and responsibility awarded by the court for the care, possession, and rearing of a child.

Disbursements: Expenses lawyers pay on behalf of their clients.

Divorce Order: The Court document setting forth the terms of the divorce and setting forth on what date the divorce becomes final.

Domestic Contract: A separation agreement, marriage contract or cohabitation agreement, Part IV of Family Law Act govern these contracts.

Equalization Payment: The amount paid by one party to the other party to equalize their respective net family properties.

Evidence: Documents, testimony, or other material offered to the court to prove or disprove allegations.

Ex-parte: This term has been replaced by “ without notice” and is an application for relief without serving the other party.

Execution: Formal signing and witnessing of a legal document. Also, a writ of seizure and sale.

Factum: A court document setting out the main facts and the statute and case law which support the case at hand.

Family Law Act Application: The proceedings in which one party seeks relief for custody, equalization of assets, support or custody, but not a divorce.

Financial Statement: A court document showing the value of a spouse’s income, expenses, property and debts.

Interim Relief: An order for support or custody or some other issues (but not equalization of assets) until the proceeding is heard.

Joint Custody: An order giving custody to both parents; usually, this gives both parents input into decisions concerning the health, education, and welfare of the children, but the children may ordinarily reside with one parent.

Judgment: A final decision of the court handed down after trial.

Jurisdiction: The authority of the court to decide on an issue.

Minutes of Settlement: The written settlement agreement made when one party has started an action.

Motion: A written application to the court for some particular relief such as interim (temporary) support, interim custody or interim exclusive possession of the matrimonial home.

Net Family Property: The value of a party’s property on valuation date, less excluded property, less debts and liabilities on valuation day, less the net worth of the party on the date of marriage (other than a matrimonial home).

Net Family Property Statement: A court document showing what one party claims are his or her Net Family Property and also the other party’s Net Family Property and therefore the amount of the equalization payment.

Offer to Settle: A document formally stating all the terms upon which one party will settle a motion or the entire case on. This document is not seen by the Judge until after the motion or trial is decided.

Party: The person in a divorce action whose rights and/or interests are to be affected by the divorce.

Pleading: The written documents for the court including application, answer and reply to answer.

Precedent: A court decision which other judges may follow in deciding on a similar case; an example of a legal document followed in preparing another similar document.

Questioning: An oral questioning under oath of the opposite party.

Relief: Whatever a party to divorce proceeding asks the court to do: dissolve the marriage, award support, enforce a prior court order, divide property, address certain behaviour, dismiss the complaint of the other party, and so on.

Respondent: The party who defends the divorce proceedings brought by another. The one who defends an application brought by another.

Rules of Evidence: The rules that govern the presentation and admissibility of oral and documentary evidence at court hearings.

Separation Agreement: A written agreement between two parties when no action has been started.

Settlement Conference: A mandatory hearing before a trial to obtain the opinion of a Judge.

Transcript: A typewritten record of testimony taken by a court reporter during questioning or a trial.

Trial: A formal court hearing to decide disputed issues raised by the pleadings.

Uncontested Divorce: A proceeding in which the parties have reached an oral agreement prior to consulting a lawyer or have a written separation agreement.

Undertaking: A written promise to do something.

Lawrence S. Pascoe's General Matrimonial Information Form

(click here to be directed to the interactive form)

Part I: Personal Information

Client:
1. Full Legal Name:
_____________________________________________
2. Street Address:
_____________________________________________
3. City and Province:
_____________________________________________
4. Postal Code:
_____________________________________________
5. Home Telephone:
_____________________________________________
6. Work Telephone:
_____________________________________________
7. Fax Number:
_____________________________________________
8. Cellular / Pager:
_____________________________________________
9. Email Address:
_____________________________________________
10. Resident in (municipality & Province):
_____________________________________________
11. Since (date):
_____________________________________________
12. Your Birth Date:
_____________________________________________
13. Surname at Birth:
_____________________________________________
14. Surname Before Marriage:
_____________________________________________
15. Divorced before?
yes____ no____
If yes, place and date of previous order:
_____________________________________________
16. Mother's maiden name (for Family Responsibility Office)
_____________________________________________

Spouse:
1. Full Legal Name:
_____________________________________________
2. Street Address:
_____________________________________________
3. City and Province:
_____________________________________________
4. Postal Code:
_____________________________________________
5. Home Telephone:
_____________________________________________
6. Work Telephone:
_____________________________________________
7. Fax Number:
_____________________________________________
8. Cellular / Pager:
_____________________________________________
9. E-mail Address:
_____________________________________________
10. Resident in (municipality & Province):
_____________________________________________
11. Since (date):
_____________________________________________
12. Birth Date:
_____________________________________________
13. Surname at Birth:
_____________________________________________
14. Surname Before Marriage:
_____________________________________________
15. Divorced before?
yes____ no____
If yes, place and date of previous order:
_____________________________________________

Spouse's Lawyer's Name:
_____________________________________________

Spouse's mother's maiden name (for Family Responsibility Office): _____________________________________________

Relationship Dates:
1. Married (date):
_____________________________________________
2. Married (where):
_____________________________________________
3. Started Living Together (date):
_____________________________________________
4. Separated (date):
_____________________________________________
5.
_____ Never Lived together
_____ Still Living together
6. Reconciliation Date (if any):
_____________________________________________
7. Have marriage certificate? yes ___ no ____

Information about your Children
List each child's full legal name, age, birth date, resident in (specifying municipality and province), the name of the person they are now living with and the relationship to the child.
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________

If you are not separated, have you or your spouse discussed the custody and access arrangements of the children after separation. If so, what are those arrangements. _______________________________________________________ ____________________________________________________________________

If custody and access is in dispute, please outline generally what you believe the arrangments will be and why. A comprehensive custody and access questionnaire will deal with this issue more fully._______________________ ____________________________________________________________________

Previous Court Cases or Agreements:
Have you or the children been in a court case before?
yes ____ no ____
If yes, please provide the details:
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
Have you made a written agreement dealing with any matter involved in this case?
yes ____ no ____
Date:
_____________________________________________
If yes, please provide the details:
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________

Part II: Financial Information

Note: More detailed information will be obtained at a later date

Assets and Debts (as of date of separation):
House (Market Value):
_____________________________________________
Outstanding Mortgage Balance:
_____________________________________________
Pension Value:
_____________________________________________
Spouse's Pension Value:
_____________________________________________
Investment Assets:
_____________________________________________
_____________________________________________
_____________________________________________
Spouse's Investment Assets:
_____________________________________________
_____________________________________________
_____________________________________________
Joint Investment Assets:
_____________________________________________
_____________________________________________
_____________________________________________
Automobile Value:
_____________________________________________
Spouse's Automobile Value:
_____________________________________________
Household and Personal Assets:
_____________________________________________
Spouse's Household and Personal Assets:
_____________________________________________
Debts:
_____________________________________________
_____________________________________________
_____________________________________________
Spouse's Debts:
_____________________________________________
_____________________________________________
_____________________________________________
Joint Debts:
_____________________________________________
_____________________________________________
_____________________________________________

Assets and Debts (as of date of marriage):
Value of Assets:
_____________________________________________
_____________________________________________
_____________________________________________
Spouse's Assets:
_____________________________________________
_____________________________________________
_____________________________________________

Debts:
_____________________________________________
_____________________________________________
_____________________________________________
Spouse's Debts:
_____________________________________________
_____________________________________________
_____________________________________________
Joint Debts:
_____________________________________________
_____________________________________________
_____________________________________________

Assets Received During Marriage from inheritances, gifts from a person other than spouse, life insurance or damages from a personal injury claim:
Value of inheritances, gifts, life insurance or damages from a personal injury claim received that are still in existence or can be traced from the inheritances, gifts, insurance or damages:
_____________________________________________
_____________________________________________
Value of spouse's inheritances, gifts, life insurance or damages from a personal injury claim received that are still in existence or can be traced from the inheritances, gifts, insurance or damages:
_____________________________________________
_____________________________________________
If so, please give details:
_____________________________________________
_____________________________________________

Variation of an equalization of division of assets:
Was there a domestic contract or any written agreement about sharing assets and debts? If so, give particulars:
_____________________________________________
_____________________________________________
Was there failure to disclose debts at the time of marriage? If so, give particulars:
_____________________________________________
_____________________________________________
Were debts recklessly incurred by either you or your spouse?
_____________________________________________
Was there reckless depletion of assets by you or your spouse?
_____________________________________________
Are there any other circumstances relating to the acquisition, disposition, preservation, maintenance or improvement of property?
_____________________________________________
Did the relationship have a total cohabitation period of less than five (5) years? yes ____ no ____

Income Information
1. Annual Income from Employment:
_____________________________________________
2. Income from other sources:
_____________________________________________
3. Job Description:
_____________________________________________
4. Employer:
_____________________________________________
5. Employer's Address:
_____________________________________________
6. Social Insurance Number:
_____________________________________________
7. Employee No.:
_____________________________________________

Spouse's Income Information
1. Annual Income from Employment:
_____________________________________________
2. Income from other sources:
_____________________________________________
3. Job Description:
_____________________________________________
4. Employer:
_____________________________________________
5. Employer's Address:
_____________________________________________
6. Social Insurance Number:
_____________________________________________
7. Employee No.:
_____________________________________________

Factors affecting spousal support
Were there any marriage contracts or agreements relating to support?
_____________________________________________
What was the length of any cohabitation before marriage?
_____________________________________________
Did either parent stay at home to raise the children? If so, for how long?
_____________________________________________
Did looking after the children affect the earning capacity of either party?
_____________________________________________
Does either party have physical or mental health problems?
_____________________________________________
What is the education of both parties?
_____________________________________________
Did either party contribute to the other's education or career?
_____________________________________________

Insurance
What life, health and dental insurance do you or your spouse have?
_____________________________________________
_____________________________________________

Security
Is there any reason you believe there is a need for a lump sum of support rather than ongoing payments?
_____________________________________________
_____________________________________________

Retroactive Support
Is there any reason for retroactive support? When did you first request support?
_____________________________________________
_____________________________________________

Click here to fill out our Matrimonial Information Form on-line.

PARENTING (CUSTODY AND ACCESS)
Joint Custody or Sole Custody
Primary Residence
Terms of Visitation
Moving from Ottawa-Carleton
Name Change

EQUALIZATION OF ASSETS
Household Assets
Employment and Pension Benefits
Canada Pension Plan
Registered Retirement Savings Plans
Investment Assets and Bank Accounts
Children’s Bank Accounts
Matrimonial Home
Other Property
Debts

SPOUSAL SUPPORT
Complete Release of Spousal Support
Term of Support
Amount of Support
Cost-of-Living
Life Insurance
Medical, Drug and Dental Insurance

CHILD SUPPORT
Term
Amount
Extra-Ordinary Expenses
Life Insurance
Medical, Drug, and Dental Insurance
Post Secondary Education Costs
Cost-of-Living

MISCELLANEOUS
Material Change in Circumstances
Religious Divorce
Legal Fees
Financial Disclosure
Resumption of Cohabitation

Resume of Lawrence Stephen Pascoe

Email: lspascoe at thepascoedifference.com

Birth Date and Place: October 22, 1949, Toronto, Ontario

Education and Professional Qualifications:

• Bachelor of Commerce (Honours), Dalhousie University(1972)
  
• Bachelor of Laws, Dalhousie University (1975)
  
• Ontario Bar Admission Course (1977)
  
• Family Mediation Training Course (1990)
  
• Collaborative Lawyers Training Course (2001-2002)
  

Specific Areas of Practice:

• Family Law: I advise clients of their rights and obligations when they separate or are thinking of separating from their spouse. The major issues being custody and access, dividing their assets and support for the spouse and children. I also advise my clients about the many processes that may be used to resolve the issue of a separation and I represent them in the process they choose which may include going to mediation meetings or representing them in an arbitration or court hearing.
  
• Wills and Powers of Attorney: I advise clients on Estate Planning which involves drafting Wills, Powers of Attorneys and Trusts and provide advice on; how to ensure that on their death their assets go to the appropriate desired beneficiary; ensuring that the appropriate person or persons look after the estate; reducing problems and conflicts that may arise in administering the estate; minimizing the amount of payments the estate pays for taxes, costs and court (probate) fees; and inheritance.
• Administration of Estates: I advise the personal representative of an estate (executor) as to what is required to administer the estate and then, as directed by him or her, administer the estate, which might involve applying to the court for the Certificate of Appointment (probate), dealing with the assets, paying debts, and accounting to beneficiaries.
  

Organization Affiliates:

• Canadian Bar Association
  
• American Bar Association
  
• County of Carleton Law Association
  
• Law Society of Upper Canada
  
• Member of Annual Family Law Institute Organizing Committee (1999 to present)
  
• Member of Collaborative Law Network
  

Teaching Experience:

• Algonquin College, Legal Assistant Program (1978-1980)
  

Seminar leader,

• Ontario Bar Admission course Family Law (1986)
  
• Law Society Continuing Education Program on Pensions and Family Law (1988, 1994)
  
• Ontario Bar Admission Course Practice skills (Family Law),(1989, 1990); Negotiating Skills (1993, 1996)
  

• Ontario Bar Admission Course; dependent’s relief claims in estates (1988 - 1990)
  
• Ontario Law Society Continuing Education Program dealing with estate litigation (Dependent's Relief Claims), 1987
  
• Ontario Law Society Continuing Education Program; marriage contracts (1987 - 1988)
  
• Canadian Bar Association Annual Institute Program; Pensions and Family Law (1989)
  
• Law Society Continuing Education Program for Legal Secretaries; preparing Financial statements
  
• Law Society Continuing Education Program for Family Law Lawyers; Employment Benefit Clauses (1990)
  
• Canadian Society for the Advancement of Legal Technology (1994, 1996)
  
• Family Law Motions: Practice and Strategy (1994)
  
• Institute of Family Law, The Life Insurance Clause in Separation Agreements (1996)
  
• Federation of Law Societies, The Life Insurance Clause in Separation Agreements (1998)
  
• County of Carleton Law Association and Law Society Continuing Education Program, Determining Income of the Self-Employed under the Child Support Guidelines (1999)
  
• Law Society Continuing Education Program, Basic Management Principles for Lawyers (May 2000)
  
• Law Society Technology for Lawyers conference, Some Thoughts on Producing and Marketing a Law Firm's Web Site (November 2003)
• Law Society and Ontario Bar Association’s Annual Solo on Small Firm Conference and Expo - Lawyers Can Be Different - Providing Innovative Legal Services (2006)
• Law Society and Ontario Bar Association’s Annual Solo on Small Firm Conference and Expo - Some Thoughts About Using Technology to Market Legal Services (2007)
• Institute of Family Law - Stress Management for Lawyers (2007)
  

Public Speaking: