There are those who believe that mediation/arbitration – as a package – is a better alternative than the actual in court process. There are those lawyers who include mediation/arbitration clauses in domestic contracts without giving a great deal of thought to the implications of those clauses to their clients. As a result many, many people are encouraged to sign mediation/arbitration agreements  or domestic contracts that compel them to follow that road and which takes them out of court almost completely.

 Arbitration may be presented to you as an alternative to the courts at the very beginning of your matrimonial dispute process or it may be a provision in your domestic contract or separation agreement listed under the heading ‘dispute resolution’ . Most often it is not carefully discussed and people sign these agreements without having a full understanding of what they will be facing.

 Beware. Once you have signed that agreement you are locked into that process and cannot get out until the arbitration is finished. You cannot change your mind halfway through. Only once the arbitration is concluded can you appeal the arbitrator’s decision to a court of law – and only if you have not waived that right in the agreement.

Issues such as support, custody, access and equalization can often be resolved in mediation and at a cost far lower than the substantial financial burden you will incur going to court. Does the same apply to arbitration. Absolutely not. And usually no one explains this before you sign the agreement.

Arbitration is in fact the hiring of a private judge. That means that you will be paying for not only your own lawyer but for the judge as well. And private judges don’t come cheap. In addition to the additional cost of the private judge (the arbitrator)  a court reporter is required during the arbitration and that charge as well has to be paid by the participants. At the end of the process there will be a cost award against the party who loses and that will likely include the successful party’s share of the cost of the arbitrator.

Further to the cost issue there is a scheduling issue. Arbitrators are almost always lawyers (or retired judges) who are in private practice and who have their own heavy schedules to contend with. That means that arbitration often takes longer from beginning to end than the court process.

Remember that the same person who was your mediator is going to be your arbitrator. During mediation you are encouraged to bare your sole and tell the mediator how you personally feel about every issue. He or she may already have prejudged you. He or she may not like you. That is the same person who is going to be your judge during the arbitration. Your mediator will no doubt tell you that once mediation ends and arbitration begins they will easily forget everything that went on during the mediation and start the arbitration with a fresh slate. Is that really possible?

I encourage anyone considering mediation/arbitration to ask a lot of questions. Do your homework. Understand what you are doing. If there is a dispute resolution clause in your agreement be conscious of the fact that the process may and often does get triggered at a later date. If you are about to try to resolve a dispute by using arbitration check out the proposed arbitrator. Ask for references. Get a careful cost estimate. Know as much as you can before you agree.

I do not mean to suggest that this process is not the right process for a lot of people. There are many very good mediators and arbitrators who will work hard to achieve a just and principled result at the earliest possible stage and who will do a very good job in assisting all of the participants to reach that goal efficiently. I am just encouraging you to go into the process with your eyes open.

Steven M. Bookman is a lawyer who specializes in family law with offices in central Toronto. He can be reached at sbookman@bookmanlaw.com or at 416-488-2243.

Mediation is a negotiation process facilitated by a third-party who is called “the mediator”. Mediation can take place with or without lawyers present.   This can be an extremely useful and rewarding experience depending on a number of factors, including the idea that both parties must be willing to engage in mediation and be prepared to accept the idea of compromise.

When mediation first appeared it was largely populated by individuals with a social work/therapeutic background. Participants went through a process called pre-mediation during which the mediator would assess their state of mind and whether they were appropriate candidates for mediation. Often one or both parties were not and the mediation was cancelled. Further, in the early stages the role of the mediator was simply to guide the discussions in the direction of compromise and settlement. A good mediator would discuss the implications of each person’s position and help them examine the consequence of compromise. When tensions escalated or someone ‘fell off the rails’, the mediator would occasionally have a short one on one therapy session to restart the process. All in all it was a successful and rewarding process.

Then something happened that should have been expected but was not. Lawyers, retired judges, retired lawyers and just about anyone else who was looking for extra income decided to hold themselves out as mediators. This created a whole subset of mediators who have no therapeutic capabilities and whose primary goal is often to resolve the legal dilemma while completely ignoring the associated emotional fallout. The result has, in my opinion, been both good and bad. Given that most lawyer/mediators are intelligent and also experienced litigators, this often works quite well and satisfies the clients. As well a large number of family law practitioners understand their clients’ emotional trauma and as mediators they make the effort to appease the angst that the participants are experiencing.

And then there are those who let their over inflated egos drive the mediation. Some are overly opinionated and overly directive and serve only to agitate the clients and alienate one or both of the lawyers. These mediators seem to view themselves in a quasi-judicial role and actually believe that their task includes advancing their own opinions of the individual client’s possibilities of success in a courtroom on each issue being mediated. In other words they are attempting to bully one or both participants into giving up their position and to agree to settle. Surprisingly there are actual advocates of this approach and it has now been given a label – the “Evaluative Approach”. This mediator sees the role of the mediator as the ultimate evaluator of each client’s legal position. This often undermines the role of the lawyer who has given advice to his or her client that is now being completely contradicted by the mediator.

In my view it is not and never will be the mediator’s role to make judicial pronouncements. That is why we often end up in front of a judge or an arbitrator. That is their job and not that of the mediator. The mediator is a facilitator of a potential settlement and the mediator needs to understand his or her job and why they are being hired. They are not there to give the client different legal advice then was given by their own lawyer. They are not hired to argue with the client or argue with their lawyers. They are supposed to be skilled manipulators and that seems to be a talent that many mediators lack. And that is why many people who are unsuccessful in their mediation have refused to return after one session. Don’t allow that to happen to you. Research the process before you agree to it. Research the mediator before you agree to use that person.

Mediation is an incredibly useful tool. Make it work for you.

On another day I will be discussing the merits of agreeing to binding arbitration – something that you should do with great caution and trepidation.

To contact Bookman law email us at zdehghan@bookmanlaw.com or call 416-488-2243

For many people who have finally finished with the legal process the worst part is just about to begin. A great number of recently divorced feel the sudden impact of lonliness and isolation soon after the hubub of the legal battle has subsided. What was an integral part of your life has now disappeared – and I don’t mean your husband or wife. I mean the quest for justice that dominated your existence, dominated your conversations with friends and relatives, woke up with you and went to sleep with you. Over. Finished. Gone.

How do you now refocus and move on. For some that is a very difficult task. Being involved in a legal proceeding that has consequences that are very critical to your future means that you must be closely connected to the process. Constant review of documents, frequent emails, calls and meetings with your lawyer, and court appearances can become almost an obsession. The time commitment is substantial; in some cases huge. When it ends there is an immediate need to find something to fill in the void.

You need to refocus and redefine yourself. You do not have to return to your old routines and habits. You are in control. You have control over yourself and control over the directions that your life will take. This can be, if you want it to, a  new beginning.  The beginning of a new life, the beginning of self empowerment, the potential for a world of new experiences. It is an opportunity to thrive, to make intelligent and informed decisions that will affect your future in a positive way.

Do not view your divorce as an ending. View it as an opportunity to begin a fresh, exciting experience, to redefine who you are and where you are headed.

Perhaps. You have the option of living apart but not divorcing. As long as you can maintain an ongoing financial partnership, deal with child related issues, and work out the orderly division of your joint property over a reasonable period of time, you can then avoid the high emotional and financial cost of divorce.

There are advantages and disadvantages to following this path. The decision about whether this might work for you should be carefully made. It should be clear that a ‘no divorce’ relationship will work only if you and your ex are able to maintain a high level of civility.

The advantages include:  No outlay of large amounts of money for lawyers, accountants, etc. You avoid the war zone mentality. You can maintain joint properties, joint activities with your children, family medical and health insurance plans. You can plan the orderly division of assets over a time frame that accomodates economic considerations such as the state of the economy, the stock market and your own bank accounts. You can maintain new relationships and plan the eventual divorce after you have resolved financial and child related issues over an extended period. Neither one of you will be trying to demolish the other.

The disadvantages include: The absolute need to supress your emotional trauma which has sprung from the marriage breakdown (something that many find impossible to accomplish). The difficulty of knowing that you may not have and may never receive full disclosure of your spouse’s assets. The possibility that your ex may be able to maintain a claim on your estate. No formal structure in your child sharing arrangements including issues of custody and decision making. No dispute resolution process in place. No ability to remarry when you want. The difficulty of moving on with your life.

I do favour the formal termination of the marriage if it is in fact over and cannot be revived. Certainly there are those who are indeed capable of being civil to each other after separation and who would be perfectly capable of making a “separate and apart but still married relationship” work. In my experience those couples are rare.

It is just a fact that marriage termination generally carries with it a huge emotional component that is almost impossible to moderate let alone supress. Most people need to end the relationship by way of divorce and final settlement of their financial and child related disputes in order to simply move on with their lives.

I have witnessed many, many separated people who are consumed with anger and worry. They are completely incapable of putting those feelings behind them until they have a final resolution. Only then do I see them capable of refocusing.

Yes there are a few out there who can stay married but live separate. If you think that may be the right decision for you then I encourage you to speak to an experienced family lawyer to review the benefits and problems that may result for doing that.

A prenup is a Domestic Contract which is an agreement recognized by the Family Law Act of Ontario and governed by the statutory requisites of that legislation. The actual real name of a prenuptial agreement is a Marriage Contract.

Young people being married for the first time in a jurisdiction such as Ontario are not inclined to want a prenuptial agreement unless one of them comes from a wealthy family. In that case it is usually the parents of the bride or groom who are the driving force behind the agreement. Why do they not usually care. Because they generally have very little money, a small or non-existent asset base, more liabilities such as credit card debt than assets, and are optimistic about the future, their relationship and their soon to be spouse.

People who are entering second or third marriages (or fourth and fifth) are the largest group who seek these agreements. They want them for a set of reasons all their own. Usually one or both have acquired some wealth, they may have children from a previous marriage, they may have gone through an acrimonious divorce, and they are far more cynical than newlyweds about the prospect of staying together forever.

Many people call my office looking for marriage contracts. When it is the spouse that has little or nothing they usually adopt the attitude that they don’t want anything anyway from their spouse to be and are happy to sign just so they can get on with the wedding. It is of interest to me to have noticed that quite a number of people who call tell me that the wedding is just a week away, or that they are pregnant and need to get married as soon as possible, or that their fiance says no prenup – no wedding.

Aside from the legal implications of signing any contract, including a marriage contract, under duress, what should you consider before agreeing to be completely separate as to your property. That means that whatever you own on the day of your marriage is yours and whatever your spouse owns on that date is his or hers. It also means that any growth in those assets and the acquisition by either of you of any new or additional assets may well be excluded from net family property calculations on separation. It may also mean that the house you will occupy during your marriage will belong to your spouse and on separation you will have no claim to any part of the value of that property.

Do not take the implications of a marriage contract that creates fully separate property lightly. Think about what you envisage the future to be. Will you be a stay at home mother raising the children? Will you take a job at a salary far below your spouse’s salary? If the marriage breaks down ten or fifteen years down the road will you be content to be put out of the matrimonial home with no money to purchase a new place to live. Will you be happy receiving only spousal support and perhaps child support when your spouse has managed, during the course of your marriage, to acquire hundreds of thousands of dollars worth of assets while you encouraged him or her and cared for him or her and nurtured him or her. Not likely.

The idea of marriage is a romantic concept, and during the pre-marriage period people can be very idealistic about the future. Unfortunately, many marriages end in divorce. Keep in mind that if you find yourself in the middle of a divorce some time down the road, you will want to rely on your pre-nuptial contract. You may not be able to find a job, or a job that will provide you with the amenities you have enjoyed during the marriage, or you may be unemployable because you gave up your career to look after the home and/or the children.

If you have contracted away your right to share in the money or assets your spouse has acquired during the marriage, you will be sorry that you did not carefully consider the implications of what you were signing when the prenup was put in front of you.

The pressure to just sign and get it over with may be enormous. Do not sign any contract without good, sound legal advice. By that I mean find yourself an experienced family law lawyer and discuss with him or her your concerns about the future and your concerns about your financial well-being if your new marriage breaks apart when you are at an age and in circumstances that will make it difficult if not impossible to re-establish yourself financially.

 Treat a marriage contract seriously. Your future may depend on it.

Steven M. Bookman is an experienced lawyer practicing Family Law in Toronto, Ontario. He may be reached at 416-488-2243 or at sbookman@bookmanlaw.com. His offices are located at 1881 Yonge Street, Suite 504, Toronto, Ontario, M4S 3C4. Visit the firm’s web site at www.bookmanlaw.com.

Why is it not right for everyone? Mainly because there are those who are more interested in fighting than settling. More interested in punishing their spouse than moving on. More interested in giving as much money as possible to their lawyer than giving it to their spouse or their children.

Separation and divorce are emotionally driven processes. Those emotions operate at different levels for different people, but in my experience the majority of separated couples begin in a high emotional state which modifies as time goes by. This modification process is usually a result of a number of factors which include: a. just the passage of time; b. getting tired of fighting; c. running out of money or finally realizing just how much money it is costing; d. finally realizing what a terrible effect the constant fighting is having on your children; e. someone new in your life which motivates you to get this over with; f. a hundred other reasons.

Why mediate? For several reasons. First, it is way less expensive than litigating while your rights to litigate are preserved. Second, if it is not 100% successful you will likely at least be able to narrow the issues over which you need to continue to be in conflict. Third, it is a self-directed process. The mediator is there to guide you not direct you. You are the ones who make the decisions and you are the ones who determine the outcome, not a judge who is a complete stranger – a person who has never met you before and will never see you again.

If you engage in closed mediation then nothing you say can ever be repeated in the court process. If you reach an agreement that agreement will not be binding until you have had an opportunity to review it with your own lawyer. Anything you agree to during mediation can be altered or even cancelled at any time up until you sign an actual agreement with independent legal advice.

Try and approach the entire process like it is a business negotiation – one where your objective is to try to make the best deal for yourself.

Steven M. Bookman is an experienced family law lawyer located in Toronto, Ontario. He can be contacted at 416-488-2243 or at sbookman@bookmanlaw.com. Visit the firm’s web site at www.bookmanlaw.com.

Steven M Bookman is an expersienced family law lawyer with offices in Toronto, Ontario. He can be contacted at 416-488-2243 or at sbookman@bookmamlaw.com. Visit his firm’s web site at www.bookmanlaw.com.

Unfortunately that is not the way it always plays out. Final orders can be changed if there has been a material change in circumstances. This generally applies to such areas as child related issues such as custody and access and child support, or to spousal support.

When dealing with child related matters it is generally accepted that nothing is permanent and that every issue related to the child remains open to change. That is because the view of the court is to do whatever is in the best interests of the child and if what is in the best interest changes over time then the court will always be prepared to consider changing its prior order.

When dealing with issues between spouses things are a not quite as definite. If a separation agreement is signed with proper legal advice, or if Minutes of Settlement have been signed which gave rise to a subsequent court order, then you must be able to establish an entitlement to a change in the prior order made. And the place to start is with the concept of ‘material change in circumstance’.

In the area of support, for example, many agreements contain a clause by which the parties agree that no change in circumstance will ever warrant a change in support. It is almost (but not always) impossible to achieve a change if that is in your agreement. Another thing to look for is whether the change was reasonably forseeable at the time that the agreement was signed or the final order made. If it was reasonably forseeable than likely a motion to change the final order will not be successful.

An example of how this works is the following based on a recent Ontario case. An ex husband brought a motion in court to terminate spousal support a few years after the final order had been made because his ex-wife was getting married. He argued that the 8 year support order should be terminated early because his ex was now getting married. Unfortunately for him, the court said “no way”. The ex had been in a serious relationship with her future husband to be at the time the divorce agreement had been signed and the final order made. The ex husband was very well aware that the relationship was serious and on going. The marriage was ‘reasonably forseeable’ at the time and it was not now open to the ex husband to take the position that he could not have foreseen the marriage to be. He entered into the support agreement knowing at the time that she would likely remarry and therefore it was not a new circumstance.

What do you do to minimize your chances of your final order being later changed? Make certain that any agreement reached that deals with important ongoing issues are put into a separation agreement and that the agreement itself is as air tight as can be. Even then there will be no guarantee but you will have a much better chance of staving off a future motion to change.

Steven M Bookman is a family law lawyer located in Toronto, Ontario. He can be contacted at 416-488-2243 or at sbookman@bookmanlaw.com. Visit the firm’s web site at www.bookmanlaw.com.

Many people decide not to sign a marriage contract before they get married for a variety of reasons. For example many have told me that they do not want to ask their future spouse to sign a prenup because that would be a prediction that their marriage may not be forever.  Whatever the reason, there are those couples that do not think it necessary to have a Marriage Contract.

However, many perople do determine after they have tied to knot that they should have a marriage contract. It is not too late.

A Domestic Contract is just that. It is a contract which essentially is an agreement between two people signed voluntarily after having been negotiated in good faith and hopefully with independent legal advice. There are many good reasons to consider signing a contract after marriage. Financial circumstances change. Some people gain wealth. Some gain more debt than wealth. Many couples decide that their affairs need to be well determined and defined between them so that there are no surprises later in life no matter what occurs.

It is very important to remember that if you separate your property in a marriage contract you can still leave everything or as much as you want in your will to your spouse. You should think of your marriage contract as the document that governs your affairs during your marriage, and your will as the document that distributes your property wherever you want it to go upon your death.

Cohabitation Agreements apply to people who live together without getting married. Separation Agreements are the documents that are signed after you spend thousands of dollars on a lawyer to fight for money, property and children, and are usually only necessary because you did not think it was important to have a Marriage Contract.

Steven M Bookman is an experienced family lawyer with offices in Toronto, Ontario. He can be reached at 416-488-2243 or at sbookman@bookmanlaw.com. Visit the firm’s web site at www.bookmanlaw.com.

A strong relationship with your lawyer is a key to success. What is a strong relationship? A number of elements make up that relationship: Do you feel comfortable with him or her? Can you easily discuss not only your legal issues but your emotional issues? Do you feel that your lawyer will fight for you and protect your interests? Do you believe that your lawyer believes in you? Will your telephone messages and emails be returned promptly? Is the office staff available to you to speak to if your lawyer is not available? This is not an exhaustive list. I can go on and on but hopefully you have the picture. You must feel good about this person who you will be your new best friend and confidant.

One of the most frequent questions I am asked at lectures and seminars is “What do I do if I don’t think my lawyer is working hard for me?” The answer is simple. Get rid of him or her. There are lawyers around almost every corner and many of them will be the right fit for you. If you happen to have made a bad choice (something like you did when you picked your partner), fix it. Fire the old lawyer and hire a new one.

How do you find the right lawyer. There are several things you can do, none of which is foolproof but all of which will cut down the chances that you will make another bad decision. Almost one in every two marriages ends in separation and divorce. That means you should know a lot of people who have hired lawyers. Speak to them. Get names and ask questions. You also want to make certain that the lawyer you choose is a specialist in family law. You may be hiring someone who you really like but who isn’t up to speed on family law which is now very complex and highly specialized. Do some research on the internet. View some past court decisions and see if you can get some information about his or her success rate.

I understand that there is an associated cost in transferring a file to a new lawyer in mid stream. It will be worth every penny. Your bank account, your state of mind, your happiness and often the welfare of your children depend on you making the right choice.

Steven M Bookman is an experienced family law lawyer with officed in Toronto, Ontario. He can be reached at 416-488-2243 or at sbookman@bookmanlaw.com. Visit the firm’s web site at www.bookmanlaw.com.