Sherman Law LLP is pleased to share that our partner, Aubrey Sherman has been asked to serve on the provincial Board of Directors for the Ontario Association for Family Mediation (OAFM). Aubrey has indicated that he looks forward to the opportunity to collaborate with a talented group of family mediators from across Ontario in this new governance role.
Ontario Association for Family Mediation (OAFM) enforces the Standards and Code of Ethics for Accredited Family, Child Protection and Intergenerational Mediators. OAFM maintains a roster of accredited members and ensures that through the use of an Accredited Mediator, the public can confidently rely on the mediation services they receive. OAFM creates standards for and approves all training and supervised practical experience that provides a pathway to accreditation.
I am going to focus on three types of conflict in family law, which can include: Parenting Conflict, Relationship Conflict, and Value Conflict. In yesterday's blog, we talked about Relationship Conflict.
Today, we will focus on Value Conflict:
Value conflict can arise from fundamental differences in identities and values. These differences can include differences in ethics, norms, politics, religion, what we perceive as right and wrong, how we see ourselves and our role in society, and various other deeply held values or cares.
Interpersonal disputes about values often heighten responses that are defensive and cause reactions of distrust and alienation. A party may feel so strongly about their values that they reject reasonable discussion of interests or compromise that would satisfy the other. Values lead our decision-making, often if we don't realize the significance that they play in our daily lives.
Values-based disputes can be difficult to resolve. Often, the goal becomes to move towards mutual understanding and respect through dialogue. The goal here is to aim for a better understanding in which the couple can reach a better understanding and acceptance of another's point of view. This type of understanding does not always require empathy or emotional connection, but rather a "values-neutral" ability to accurately describe what someone else believes about the situation.
Sometimes, you may be able to reframe a values-based dispute by reviewing and appealing to other values that the couple shares. The focus here can be on universal beliefs or joint values, rather than focusing on differences in beliefs or cares that may have caused the dispute.
Couples who are experiencing conflict can often benefit through intervention through a Family Professional or Family Mediator. These professionals can focus on identifying the deeper interests underlying the couple's conflict. Often, this is done through active listening, which involves asking questions, clarifying what you hear to confirm understanding, and deepening to ask deeper questions aimed at probing for a deeper understanding.
If you are dealing with a family law, separation, or parenting matter, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.
Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.
I am going to focus on three types of conflict in family law, which can include: Parenting Conflict, Relationship Conflict, and Value Conflict. In yesterday' s blog, we talked about Parenting Conflict.
Today, we will focus on Relationship Conflict:
Relationship conflict arises from differences in personality, style, preferences, interests, and perhaps even conflict styles. Often people in personal and intimate relationships will develop long-simmering tensions, whether over parenting, personality differences, family relationships, or a variety of other issues.
Couples who are experiencing conflict can often benefit through intervention through a Family Professional or Family Mediator. These professionals can focus on identifying the deeper interests underlying the couple's conflict. Often, this is done through active listening, which involves asking questions, clarifying what you hear to confirm understanding, and deepening to ask deeper questions aimed at probing for a deeper understanding.
When faced with this conflict, try to engage the couple in collaborative problem-solving in which they are able to brainstorm possible solutions. If you feel comfortable, try to bring up the sources of tension and focus on listening to other person's point of view. Try to resist the urge to argue or defend positions. When a spouse works to demonstrate empathy or interest, the other is likely to reciprocate. When couples develop solutions together, rather than having an outcome imposed on them, they are more likely to get along better in the future.
If you are dealing with a family law, separation, or parenting matter, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.
Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.
For the next 3 blogs, I am going to focus on three types of conflict in family law, which can include: Parenting Conflict, Relationship Conflict, and Value Conflict.
Today, we will start with Parenting Conflict:
Parenting conflict can often involve disputes about how to divide up parenting responsibilities, differences of opinion on best practices for parenting, managing expectations of parents, and bringing judgments and interpretation of facts to parenting.
Parents who are experiencing conflict can often benefit through intervention through a Parenting Coordinator or Family Mediator. These professionals can focus on identifying the deeper interests underlying the parent's positions. Often, this is done through active listening, which involves asking questions, clarifying what you hear to confirm understanding, and deepening to ask deeper questions aimed at probing for a deeper understanding.
When faced with this conflict, try to engage the parents in collaborative problem-solving in which they are able to brainstorm possible solutions. When parents develop solutions together, rather than having an outcome imposed on them, they are more likely to abide by a Parenting Plan or previous agreement and are able to get along better in the future.
If you are dealing with a family law, separation, or parenting matter, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.
Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.
When couples decide to consciously uncouple, they may wish to consider asking these questions to help create a vision, touchstone, and transition that focuses on presence and mindfulness:
1. What if we agreed not to blame each other for the end of the relationship?
2. What if we did not make our separation a problem for ourselves and our family?
3. What if we were not determined to be right, including about thoughts about what we should have done differently?
4. What if we allowed our feelings to hold space and supported others in their feelings?
5. What if we were honest with each other about our thoughts and feelings?
6. What if we provided support and feedback to each other to allow us to learn and grow?
7. What if we agreed to not gossip about each other and our separation?
8. What if we designed clear agreements about what our family in transition would look like?
9. What if we asked, "What are the agreements about our family in transition that we need to make to allow our family to successfully move forward, with new partners, with our children, and with each other?"
10. What if we agreed to strengthen our relationships in new ways and to appreciate each other as parents and people?
If you are dealing with a family law, separation, or parenting matter, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.
Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.
Sherman Law LLP is pleased to share that our partner, Aubrey Sherman recently presented at "Crossing the Cultural Divide: Practical Ways Lawyers and Mediators can Better Work Together for the Benefit of the Public" in association with Ontario's Family Law Limited Scope Services Project, Ontario Association for Family Mediation and Law Pro.
The recording from the presentation is currently being reviewed by Law Pro as part of the Practice Pro materials and for continuing education courses.
Sherman Law LLP congratulates Aubrey and all of the presenters from this valuable project and presentation.
To view the presentation, please click here.
I previously wrote in a blog about the Supreme Court of Canada’s decision in Michel v. Graydon, 2020 SCC 24 that a parent's ability to make retroactive claims for child support is based on a child's best interests and a parent's obligation to provide timely financial disclosure, whereby Canada's highest court held that parents must pay child support based on their income. If a parent does not do so, then the court can correct the issue by way of an order that reaches back in time and requires a parent to pay what ought to have been paid previously. However, the court was not done with a review of the issue of retroactive child support.
Recently, the Supreme Court of Canada in Colucci v. Colucci 2021 SCC 24 was once again asked to review the issue of retroactive child support. This time in a different manner and through an inverted lens. This case provided the court with an opportunity to establish a framework for the courts to follow when a parent tries to retroactively decrease child support to reflect a past reduction in income under section 17 of the Divorce Act.
The father sought to reduce or cancel child support arrears of approximately $170,000. In a unanimous decision of the court, Madam Justice Sheilah L. Martin declined to give the father the relief that he sought. The message from the court was clear that financial disclosure must be provided to ensure that child support is paid in accordance with a parent's fluctuating income. If income changes, a change in the amount of support payable must be sought and advanced in a timely manner. Parents cannot expect a court to fix consequences that may arise from a parent's failure to do so.
The court noted that family law matters are diverse and complex and that courts need wide discretion to come to a fair result. Courts must balance a child's need for regular and appropriate support with the need for flexibility when a parent's ability to pay is affected by changes in income over time.
The framework recognizes two long-established principles of Canadian child support law: First, children have a right to a fair standard of support. That is a core objective of the Federal Child Support Guidelines. Secondly, parents are obliged to financially support their children starting at birth and continuing after separation. The court also explained that since the Guidelines came into effect, the payor parent is under a free-standing legal obligation that is independent of any court order -- to pay child support in line with their income.
The parties divorced in 1996 following a 13 year marriage. At that time, the mother and father agreed that their two daughters, ages 6 and 8, would live with the mother, who was awarded sole custody. The father was required to pay child support of $155 per week. Soon after the divorce, the father left Canada without telling anyone of his whereabouts. For 14 years from 1998 to 2012, the father did not make any voluntary child support payments to the mother, did not disclose his income, and moved to two different countries without notifying the mother. The father's child support obligations ended in 2012, at which time the children had completed their education and were employed.
In 2016, the father came out of hiding, when he returned to Canada. The father was facing enforcement action by the Family Responsibility Office (FRO), including personal garnishment of his wages. By that time, the father owed child support arrears and interest of approximately $170,000. The father commenced court proceedings to retroactively reduce or cancel his child support obligation to bring it in line with his declared income during those years that were related to the accumulated arrears, and to establish it based on the Federal Child Support Guidelines, which came into effect in 1997. The father also asked the court to consider his current and future inability to pay the arrears in determining if the arrears should be reduced or cancelled. The father did not take steps to adjust his child support obligation beyond a request that his lawyer made on his behalf in 1998, which was not agreed to by the mother nor was it pursued by the father before the court.
The father revealed in earlier court proceedings that he had relocated to the United States in 2000, where he resided until 2005, earning about $25,000 per year. The father then moved to Italy to care for his ailing mother who passed away in 2008. Prior to his mother's death, the father earned nominal income. After the mother's death, the father lived off the inheritance that he received from the mother's estate.
The father did not provide any financial disclosure such as income tax returns or notices of assessment even though he asked the court to adjust his support arrears to reflect his historic income. At trial, the father was successful in reducing his support arrears to $41,642. The mother appealed and the Court of Appeal restored the full amount of child support arrears. The father appealed to the Supreme Court of Canada, which brings us back to our story.
In the unanimous decision of the Supreme Court of Canada, the court refused to reduce the arrears and dismissed the appeal. Madam Justice Martin's decision and review of the father's claim discusses the importance of proper and timely financial disclosure in child support cases, wherein she states, "Disclosure is the linchpin on which fair child support depends and the relevant legal tests must encourage the timely provision of necessary information." Disclosure is a necessity and it is based on the premise underlying the Child Support Guidelines that provides that a child support obligation should fluctuate with the payor parent's income.
The court assessed whether a retroactive reduction in child support was appropriate, especially in light of the father's failure to provide timely and adequate financial disclosure. The court held that a recipient of child support is entitled to expect that the existing order will be complied with unless they are in receipt of reasonable proof that a relevant change in the payor's circumstances has occurred. Madam Justice Martin wrote, "Again, the payor holds the relevant information and knows when there has been a decrease in income. It is in the payor's own best interest to use this knowledge to notify the recipient of the change in circumstances and take steps to formally vary a child support order." The court held that when full, frank and regular disclosure occurs, the issue of long-term arrears should be a rarity. Madam Justice Martin held that it would be "illogical, unfair and contrary to the child's best interests to make the recipient solely responsible for policing the payor's ongoing compliance with their support obligation."
The court held that the father took little steps to reduce his child support obligations for almost 18 years. The father claimed his was automatically entitled to a retroactive decrease, even though he never notified the mother about his decreased income at that time. The court noted that a parent who has established a past decrease in income is not automatically entitled to a retroactive decrease of support to the date of the decrease. It emphasized that it is up to the court to make a discretionary decision based on its analysis of the specific circumstances of the given case.
The father's choice to leave Canada, not disclose his whereabouts, and to make very few child support payments was not looked at favourably. The father showed "no willingness to support the children, who suffered hardship as a result of his failure to fulfill his obligations". The father’s conduct showed bad faith and he attempted to evade the enforcement of a court order. Madam Justice Martin wrote that granting a retroactive reduction in child support would give tacit approval to the improper conduct of the father, which was not in the best interests of the children.
The court concluded that the father had not proved that he could not pay now or in the future, even with a flexible payment plan. The Court wrote that the cancellation of child support debt would only happen in exceptional cases and as a last resort. As a result, the father was required to pay the mother the $170,000 of child support owed.
The court stressed the child support system depends on adequate, accurate and timely financial disclosure. Madam Justice Martin wrote, “frank disclosure of income information by the payor lies at the foundation of the child support regime”.
If you are a parent dealing with a child support issue, you must provide timely financial disclosure to the other parent to ensure that child support is being paid based on a parent's fluctuating income. If a payor's income changes, as it does for many parents, that parent must seek a change in the amount being paid in a timely manner. The court has made it clear that parents cannot expect that the court will help to fix the consequences that may arise from a failure of a parent to advance the issue in an expeditious manner.
If you are dealing with a complication arising from a situation of retroactive child support as it applies to your family law and parenting matter, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.
Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.
Family law touches the lives of more Canadians than any other areas of law. Despite this fact, the family court system is often out-of-touch with the realities for many families whose lives significantly change as the result of separation and divorce. Statistics show that over two million children are living in divorced or separated families. In family law, a child's best interests is the top priority when making parenting decisions. Effective March 1, 2021, there will be significant changes to the Divorce Act, R.S.C., 1985, c. 3 (2nd. Supp.) being the federal legislation that governs spouses being two persons who are married to each other upon separation and divorce. The court will now recognize that each child is different and each family is unique. There is no longer a one-size-fits-all approach to parenting. This blog will provide an overview of some of the most significant changes to the Divorce Act.
The updated Divorce Act encourages spouses, parents, and extended family to look beyond the court system to resolve disputes about child support, spousal support, and parenting issues that often arise after separation. Resolving disputes outside of court is frequently referred to as alternative dispute resolution and can include a combination of approaches to resolve conflict and disputes including negotiation, collaborative family law, mediation, and arbitration. Lawyers will now be required to inform and encourage clients to resolve matters outside of court unless the circumstances make it clear that it would be inappropriate, such as where family violence exists or there is unequal bargaining power.
There is a shift in language to a more child-focused approach to describe parenting arrangements. The language of "custody" and "access" have been replaced with language such as "decision-making responsibility" for a child and "parenting time". The term "contact order" will also be introduced to describe the contact time a third-party who is not a spouse wishes to see a child such as extended family including a grandparent. These changes make the law more child-focused, with a greater emphasis on the actual tasks of parenting. The new approach uses "parenting orders" to replace orders for custody and access under the Divorce Act.
Old Divorce Act Parenting Terms Before March 1, 2021 |
Updated Divorce Act Parenting Terms After March 1, 2021 |
| Custody | Decision-making and parenting time |
| Access (spouse) | Parenting time |
| Access (non-spouse such as grandparent) | Contact order |
A parenting order sets out each parent's "decision-making responsibilities", which refers to making important decisions on behalf of a child, and "parenting time." Both parents could have parenting time, depending on each child's best interests. The new wording is neutral and emphasizes that both parents will be caring for their child when the child is with each parent. These concepts remove the notion that there is one primary caregiver for children, and the resulting frequent request to be classified as a "primary caregiver" in a court order or separation agreement. This neutral wording also reinforces the idea that there are no "winners" or "losers" in decisions about parenting arrangements in an adversarial court context.
Court orders that were issued and obtained prior to March 1, 2021 will not have to be changed to reflect the new language. After March 1, 2021, any party seeking to obtain or change a court order will need to use this new language. However, many family law lawyers and judges have previously used this language for quite some time in separation agreements, court orders, and in out-of-court settlements including mediation and collaborative family law.
Parents will have several express and expanded duties in the Divorce Act, which include:
The best interests of the child will now be the only consideration for the court when making a parenting order. When considering factors, the court's primary consideration must be the child's physical, emotional and psychological safety, security and well-being, as outlined at s. 16(2) of the Divorce Act.
A review and determination of the best interests of a child will now include:
The principle that wherever possible there should be "maximum contact" between a child and each parent that is consistent with the child's best interests has now been replaced with a new section being s. 16(6) of the Divorce Act. In allocating parenting time, the court shall now give priority to the principle that a child should have as much time with each spouse/parent as is consistent with the best interests of the child.
The Divorce Act now includes a new section dealing with family violence. Courts will have to take family violence into account. Before making parenting, contact, or support orders, courts will need to consider any other proceedings or orders involving any of the parties. This section is very important because it makes it clear that family violence does not have to be a criminal offence or to be established beyond a reasonable doubt. It also states that the family violence list is not exhaustive and includes exposure to children — either as victims or witnesses.
Section 2(1) of the Divorce Act defines family violence as:
any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes:
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
Section 16.1(8) of the Divorce Act addresses the issue of supervision in the context of parenting orders where the transfer of a child between parents or a third-party must be supervised and/or that parenting time must be supervised.
There will now be a new framework to review changes in residence and relocation which includes written notice of changes to residence and relocations between the spouses/parents. There is now an expanded view of the best interests of the child criteria for the court to consider, and establishes clear directions and burdens of proof in certain situations. There are exceptions to this rule of notice requirements in situations where there is a risk of family violence and a spouse/parent obtains a court order that notice of a change to a child's residence is waived or modified to provide limited information. In these circumstances, a party can bring an application to the court without the other spouse's knowledge.
"Relocation" has been added as a new term and now refers to a change in residence of the child or person who has parenting time or decision-making responsibility that is likely to have a significant impact on the child's relationship with a person who has:
Each party will now have a responsibility to inform the others that may be affected concerning the relocation of a parent or child at least 60 days before to the proposed move, as stated at Section 16.9(1) of the Divorce Act. Once a notice of relocation is provided to the affected individuals, those parties will have 30 days to object, which objection shall include:
(a) A written statement that the person objects to the proposed relocation;
(b) The reasons for the objection;
(c) The views of the person for the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and
(d) Any other information prescribed by the regulations.
If no objection is received within the 30 days of the party giving notice of the relocation the party and the child may relocate provided that there is no existing court order that prohibits the relocation. The burden of proof will be on the party seeking to relocate with the child in circumstances where the child is living with both parents. In circumstances, where the party seeking to relocate has the child in their care the majority of the time, the burden of proof will be on the party objecting to the relocation to prove that the relocation would not be in the best interests of the child.
Courts will now be required to order parenting time to each parent based on the child's best interests. The best interests criteria will help the court to tailor parenting arrangements for each child's specific situation. The best interests of the child test has been expanded in the context of the relocation such that a court in reviewing the issue will now have to consider the following:
Studies show that spouses and children are at a much greater risk of living in poverty after a separation and divorce if they do not receive the financial support that they are owed. The updated legislation includes measures to reduce poverty, including:
The focus on conflict and dispute resolution options such as mediation and collaborative law is a powerful first step in moving the Canadian family court system in the right direction towards a wholistic approach for dispute resolution as part of the comprehensive law movement. The new legislation attempts to bring Canada closer to becoming a party to two very important international family law conventions including the 1996 Hague Convention for the Protection of Children and the 2007 Hague Child Support Convention. While a long-term goal, Canada is not yet at the point of being a party to the Convention, but these new changes bring us one step closer to achieving this important goal. Being a party to the Conventions would make it easier to resolve many family law inter-jurisdictional issues when one or more of the parties resides in another country.
A number of new measures in the Divorce Act will surely help to streamline administrative procedures and processes to make the family court system more accessible and affordable. Requirements for lawyers to inform and encourage clients to make effective use of alternative dispute resolution processes to resolve their family law disputes will help to clear the large volume of cases and related wait time to have cases heard in a manner and approach that is less costly and emotionally draining to the parties involved. Studies show that there is greater satisfaction with the outcome of a dispute when parties work together to resolve their dispute out-of-court in an less adversarial manner.
If you believe that you could benefit from assistance in family law or wish to discuss the changes in the Divorce Act in further detail, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.
Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.
As a collaborative family law practitioner, I am often asked by clients why a collaborative separation and divorce is the best choice for them in contrast to the traditional adversarial approach to litigation and court proceedings that often results in higher costs and increased conflict.
Maintain control: You and your spouse are the decision-makers in the process, not the family law lawyers and the court.
If you believe that you could benefit from assistance in Collaborative Family Law, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.
Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.
Clients often ask us to explain the purpose of a Settlement Conference, which is to have meaningful settlement discussions to see if a case, or issues of a case, can be settled without the need for a trial. In family law, litigants are entitled to one Settlement Conference unless otherwise permitted by the case management judge. The parties to a case are expected to prepare and attend at a Settlement Conference in full compliance with the Family Law Rules. Each party is expected to attend at the Settlement Conference and to be prepared to discuss settlement confident that they have as much relevant information available to them as is necessary to assist. A party who attends at a Settlement Conference without being prepared cannot make an informed decision about issues concerning their case, and a lawyer cannot competently provide their client with settlement advice.
In a recent case of the Ontario Superior Court of Justice, Ni. v. Yan 2020 ONSC 5941, Mr. Justice D.A. Jarvis made it clear that a Settlement Conference should never be a forum to dispute and adjudicate upon issues of financial disclosure. In this case, the parties who had counsel were disregarding the Family Law Rules and practise directions regarding the purpose and value of a Settlement Conference.
Both parties prepared through the assistance of their legal counsel lengthly Settlement Conference Briefs with voluminous attachments in preparation for their Settlement Conference concerning equalization and the parties' net family property for assets in Canada and China, and support. These materials collectively contained over 236 pages and 20 tabbed attachments.
The Wife claimed that there were over 25 assets for which no disclosure had been provided. Each party made additional allegations in their materials that the other party had not provided financial disclosure with a list of over 35 outstanding disclosure requests. However, the parties failed to properly complete their paperwork and to include the specific items that the court requires such as an updated Financial Statement, a Net Family Property Statement, or to estimate the time it would take for a trial.
To make matters even worse, neither party had previously attempted to bring a motion before the court to deal with the disclosure issues, which is what an experienced lawyer knows to do prior to the scheduling a Settlement Conference. You cannot settle a case if you do not have financial disclosure, and it would be negligent to have any comprehensive settlement discussions or to conduct a Settlement Conference prior to disclosure.
It is clear that the lack of attempt by counsel to rectify the financial disclosure issues before the conduct of a Settlement Conference signaled to Justice Jarvis that neither party was taking the purpose of a Settlement Conference seriously. Justice Jarvis made it clear that the court's time must be respected, and you must come to court prepared to deal with your case. There are rules of practise in place for a purpose, and they are not to be blatantly disregarded to use the court to attempt to achieve another purpose.
The court held that the Settlement Conference had to be adjourned, and that no further Settlement Conference could be scheduled without leave from Justice Jarvis as the case management judge. The Settlement Conference would not be proceeding because neither party was properly prepared or at the stage of the case that it made any sense to have any substantial settlement discussions.
Justice Jarvis referred to a passage from Justice Kitely in Greco-Wang v. Wang, 2014 ONSC 5366 and added:
"Members of the public who are users of civil courts are not entitled to unlimited access to trial judges”. While that observation was made in the context of a Trial Scheduling Conference, it is equally, if not more, pertinent to settlement conference events. Too often serial settlement conference events are permitted in circumstances where there are continuing complaints about inadequate or refused disclosure impacting a party’s ability to make an informed settlement decision. That practice must end.
The court noted that financial disclosure had to be complete prior to the conduct of a Settlement Conference by way of a motion. A failure to comply with any financial disclosure so ordered at a motion may invite the non-complaint party's pleadings to be struck. The court made it clear that parties are entitled to one Settlement Conference unless otherwise ordered. Either the parties were to comply with their disclosure obligations "or their day in court would not happen any time in the near future" (at para. 12). The court stated that a Settlement Conference should not be used for "serialized mediation" (at para. 12).
If you and your lawyer decide to disregard the Family Law Rules and practise directions, you do so at great risk of your case not being heard. Even worse, you may upset a judge so much that they may cancel the Settlement Conference and release a written reported Ruling, as occurred in this case. This case is a lesson to all family law litigants that the rules of the court must be followed, and a failure to do so will not be looked at kindly by the court.
If you are dealing with a family law matter before the court, and you need assistance with a Settlement Conference or legal representation, we invite you to contact an experienced lawyer at our firm for more information about how we may be of assistance.
Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.
