Free Resources: Tax Consequences of Separation and Divorce

Tax Consequences of SeparationThey say that two things in life are inevitable: death… and taxes. Filing your taxes is seldom a straightforward process, and couples going through separation and divorce face potentially complex tax implications.

The Canadian Bar Association Family Law Section has released a helpful, free resource for those navigating this difficult time. Tax Matters Toolkit: Separation and Divorce is a quick but thorough overview to working with the tax system and important Canadian Revenue Agency (CRA) forms for separation and divorce.

The Toolkit includes information such as: thinking about the tax consequences of separation and divorce; keeping documentation such as receipts for tax purposes; getting advice from family law lawyers, income tax specialists, and accountants; and definitions of key terms. There are also guides for filling out important CRA forms related to changes in marital status, support payments, and RRSPs, RRIFs, and SPPs.

The CBA’s new Toolkit is a valuable resource that we encourage all dispute resolution professionals to recommend to their clients. We certainly will!

Image credit: efile989, https://creativecommons.org/licenses/by/2.0/legalcode

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Upcoming Course: Arbitration Law for Parenting Coordinators

Arbitration LawParenting Coordination (PC) is one of the most daunting fields in family law. It is also one of the fastest growing. In Ontario, PC practice operates in a bit of a void as there is no legislation governing the practice and no Ontario-based standards of practice. Other than minimal direction in the Arbitration Act and the Family Law Act, those doing this important and challenging work are working in an emerging field with relatively little direction.

Although many skilled PCs are able to assist families without having to arbitrate, a solid understanding of Ontario’s Arbitration law and practice is essential to effective and competent PC practice.

This September 18-19, Riverdale will be offering “Arbitration Law for Parenting Coordinators.” This course, designed specifically for PCs and other dispute resolution professionals without legal backgrounds, provides the essential knowledge necessary required to conduct a simple arbitration hearing.

The course is a comprehensive, practical workshop designed to familiarize DR professionals with the fundamentals of family arbitration law and process, using case studies, role plays, guest speakers and class discussion.

Participants will learn:

  • Overview of legislation & regulation
  • Pre-arbitration process & Agreements
  • Motions
  • Screening for power imbalances
  • Arbitrations with self-represented parties
  • Hearing options
  • Evidence basics: witnesses, documents, hearsay, experts and reports, use of reporter
  • Taking notes and keeping a record
  • Dealing with objections and irregularities
  • Ensuring and documenting procedural fairness
  • Meaning of bias and impartiality
  • Writing partial and final awards
  • Managing time and costs for the parties
  • Fees and retainers
  • Appeals and reviews
  • Enforcement of awards

Past participants have been highly impressed with the course, saying:

  • “Excellent workshop, would attend a sequel!”
  • “Excellent presentation and discussion, clear information.”

Register now for “Arbitration Law for Parenting Coordinators” to take the next step towards practicing arbitration. Registration closes September 11th. See the course page for details and flyer.

Image credit: smlp.co.uk License: https://creativecommons.org/licenses/by/2.0/legalcode
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Domestic Violence and Family Law Mediation

Judge Susan P. Finlay (ret.) guest authors this post on domestic violence and family law mediation

Judge Susan P. Finlay (ret.) guest authors this post on domestic violence and family law mediation

One of the most important responsibilities of a mediator is to provide a safe environment in which the parties work to resolve their conflicts. Without this safe environment, no mediation can be successful. This responsibility coupled with the threat of domestic violence has resulted in mediators feeling an aversion to working with parties whose relationship history includes domestic violence.

Another responsibility of the mediator is to make sure that any agreements between the parties are the result of free will and are voluntary, not the result of duress and/or coercion. This responsibility increases the reluctance of mediators to get involved in cases where domestic violence is present since many domestic violence cases involve power imbalance as well as threats and coercion.

Mediators are well aware that family court cases are the most dangerous. Some reports indicate that 1 out of 3 couples has experienced domestic violence and that domestic violence is a leading cause of death for women in this country. We have all read news stories of the rejected spouse who, sometimes years later, guns down his ex, sometimes her co- workers, and sometimes his children as well. Most experts believe, with justification, that domestic violence cases belong in a criminal court. There is no question that the criminal courtroom has a different dynamic than a mediator’s office. Nevertheless, couples who have experienced domestic violence still get divorced and some can benefit from the services of a mediator.

There is a legitimate fear among victim advocates that the mediation process will somehow act to infer or imply that domestic violence is just another problem to be solved as opposed to the crime it is. Advocates fear that mediation will minimize the devastating effects of domestic violence upon victims including the children.

All of the above concerns, which are legitimate, have combined to create a blanket prohibition for some mediators against mediating DV cases which in some cases have resulted in heightened danger for the victims. The court process is very scary and stress inducing. When one or both of the parties to the divorce action have personality disorders such as borderline, antisocial, histrionic, narcissistic or paranoid personality disorder, the tense and adversarial posture of the litigated divorce case can be enough to send some parties over the edge and into violence. Mediation can help calm these parties in many instances.

So what can mediators do to achieve the goal of helping clients and at the same time reduce the likelihood of harm to the victims, their children, their co-workers and/or to the perpetrators themselves?

Let’s go back to the concept of creating a safe environment.

Mediator Steps for Reducing the Likelihood of Danger

In a known domestic violence case, the mediator must research the case history and make an assessment regarding the level of danger. There are written instruments the mediator can use to assess lethality or a verbal interview based on questions the mediator has in mind (so that the other party doesn’t know what has been asked). For example, high risk factors include prior use of weapons, strangulation, sexual violence and serious injuries among other relevant factors.

It is recommended that the mediator assess and weed out the high risk cases. To do so, the mediator should use a screening process which not only includes the risk assessment, but also includes a detailed case history. The more the mediator knows, the better decision he or she can make regarding the suitability of the case for mediation. An example of the assessment/screening process could be set up as follows:

  1. DV Screening Process: The Parties are advised that the mediator will screen them to see if the case is suitable for mediation. The parties are directed to arrive and leave separately on different days, or with the victim arriving last and leaving first if it’s the same day. Either is welcome to bring support persons who can wait in the waiting room or accompany them in the interview. The mediator meets with the couple, separately – to ascertain suitability using a screening process which includes a risk assessment and detailed case and relationship history.
  2. There are different kinds of domestic violence as well as different types of abusers. Some cases are situational, brought on by stress, with no history of domestic violence. This type of case can involve damage to community property, such as destroying clothing or cars. If the damage is inflicted on a human or a pet, however, this should be a red flag. People can get angry under stress and break inanimate objects but normally don’t injure other humans or animals. If one or both of the parties are mentally ill or alcoholics or drug addicts, these are also red flags indicating that the case is unsuitable for mediation. Any case involving a weapon should be sent back to court, where there are armed bailiffs. These cases are just too dangerous and need a safer environment. The mediator needs to remember that victims may minimize their circumstances because they don’t want to believe it or are ashamed, and abusers can be charming and in denial.
  3. If the clients are amenable to mediation and the mediator finds that the case is a suitable one, then the mediator needs to take time to coach the parties regarding skills they can use for a successful mediation. The mediator needs to focus on what they, as a team, can do to achieve their goals and move forward.
  4. There are some cases where the parties cannot be in the same room; there are some where the parties are comfortable in the same room. The parties will let you know and if they don’t, their body language is often a giveaway.
  5. If there is a restraining order, it must be amended by the protected party prior to any mediation taking place to allow for mediation with a specific mediator, at a specific location and time. Remember these protective orders must be clear so that law enforcement can enforce them if need be. Some offenders know no boundaries and could call their spouse at 2 a.m. to “mediate”. The order must be specific regarding with whom, where and when.
  6. If there is a tremendous power imbalance, the mediator needs to consider whether or not to continue if the “powerless” is not represented by counsel. A mediator can make it a prerequisite that the party with little or no power be represented by counsel and that the attorney be present at the mediation sessions, or that both parties must have counsel present, which may help in managing the abusive party.

There are many restorative justice programs where the victim confronts the offender and is empowered by the experience. This approach can restore power to the powerless. Divorce mediation, however, is not a traditional restorative justice process. It can be another way for an abuser to inflict emotional damage on the victim or re-victimize the victim. For this reason, many organizations are opposed to mediation in domestic violence cases. It is obvious that training and experience are needed to avoid re-victimization. If successful, mediation can be empowering for both parties.

In a domestic violence case, the mediator’s ethical responsibility to remain neutral is crucial. The mediator must be vigilant about NOT being used as another weapon against a vulnerable victim. Both parties affected have needs which the mediator can address. For example, referrals can be made to therapy, to Batterers’ Programs, to a shelter, to a DV Hotline, to mental health services. These referrals are particularly important when dealing with custody issues since under Family Code 3044, a domestic violence offender is presumed to be an unfit parent. If the mediator has screened out the habitual offenders and is dealing with a situational offender, then the children may not be in danger. The situation of the children must be addressed by the parties and the mediator. If Child Protective Services (CPS) is involved then any parenting plan must be approved by CPS.

If a mediator is going to work with victims and abusers then the mediator needs to be very clear regarding his/her purpose. It is not to solve the “problem” of abuse. Other than making referrals to appropriate treatment provider(s), the issue of abuse is an issue that the parties will have to deal with themselves. What the mediator can do is help them solve their non-domestic violence issues which are common to every divorcing couple. The DV is present, like an elephant in the room, and can’t be ignored but it can be recognized and placed in the background so that the other issues can be resolved which will help the couple reduce stress and part ways in a more constructive manner.

Restraining Orders

If the mediator acknowledges and places the domestic violence issue in the background, as suggested in the preceding paragraph, then the restraining order should not be on the table for negotiation. This is a court order. The protected party can request a modification and/or dismissal on his/her own, but it shouldn’t be part of the resolution of the other issues.

In summary, this mediator will mediate cases involving domestic violence in certain cases. Some people are in need of this assistance and can benefit greatly from an alternative dispute resolution process. Mediation for them can begin the healing process as they move on to new and hopefully better lives. The need is there. As a member of the State Domestic Violence Task Force for 7 years, and as the supervising Judge of the Domestic Violence Court in San Diego for 4 years, I have received hundreds of hours of training from experts on this issue. Every day, on the bail review calendar, I had to determine whether or not it was safe to release accused abusers on their own recognizance and whether or not the accused abuser presented a danger to the spouse and children. I have issued thousands of protective orders in criminal court and in family law court and taught Domestic Violence for the National Judicial College as well as for CJER’s new judge college in California. Even with this experience, I proceed with great caution. These can be volatile situations and I have learned to my deep sorrow that a misjudgment carries heavy consequences.

If it is true that 1 out of every 3 couples has experienced domestic violence, then we have all already handled many of these cases but were unaware that domestic violence was part of the equation. While the known domestic violence case presents certain concerns which I have addressed above, the case with hidden domestic violence issues may be even more dangerous. This is why I believe it is crucial to take a detailed case history before beginning the actual mediation in all cases. It is imperative that the mediator do an assessment, not only of the risk and lethality factors, but a general assessment to determine the appropriateness of mediation in each case. If you don’t know the rocks are there, you are more likely to run into them. If you know where they are, it may be possible to avoid them.


Hon. Susan P. Finlay, (Ret.)
Mediator, West Coast Resolution Group

Hon. Susan P. Finlay has been a part of the legal community for over 30 years and retired from the Superior Court in March of 2000. She sat on Assignment in Domestic Violence and Family Law Courts as member of the Assigned Judges Program, appointed by the Chief Justice of the California Supreme Court until December 2011. She also served on the Advisory Committee to the Chief Justice for the Assigned Judges Program until December 2011 and was the former Director of Education for the Center for Problem Solving Courts and the National Association of Drug Court Professionals.

After serving almost 32 years on the bench, Judge Finlay knows what happens in family court. She has the strong desire to assist families through divorce mediation and private judging. A true problem solver, her experience and compassion count.

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Power Imbalance Workshop in Seattle for APFM

Power Imbalance Workshop July 19 2014

Hilary Linton and Claudette Reimer with the APFM training participants on July 19, 2014

On July 19-20, I was one of three trainers who gave a workshop on Power Imbalance in Family Mediation for the Academy of Professional Family Mediators (APFM). Hilary Linton and Claudette Reimer both run mediation programs in the Toronto area and they presented their methods for screening for power imbalance (especially for domestic violence) in individual intake interviews before meeting jointly with the parties. This stimulated a lot of discussion of three questions: 1) whether such intake interviews are really necessary in all family mediation cases; 2) if the mediation proceeds, how to conduct it safely; and 3) how to conduct family mediations in terms of high conflict personalities (the part I focused on).

The first question was addressed by Hilary and Claudette presenting information about the percentage of family mediation cases in which there is a history of domestic violence. Hilary said that research shows that it’s present in about 50% of our separation and divorce mediation cases. I offered my belief that it is present in only about 20% of family mediation cases and that not all allegations of domestic violence are true. However, they convinced me at a similar training last year for APFM that there is a need to screen cases, regardless of the percentage, because of the severe consequences when there is violence or even death following mediation (and they gave a few examples which have occurred in the past few years).

Yet they then explained why research now supports the fact that mediation is better and safer than court for such cases and that they actually screen out very few domestic violence cases – instead they focus on how to make them safe in mediation. I explained how I have decided to screen cases within the context of Pre-Mediation Coaching, so that I combine teaching skills they will use during the mediation with checking to see that mediation is appropriate and safe.

Hilary and Claudette then addressed the second question above by explaining measures for making mediation safe, with cues for people to give if they start feeling unsafe, with separate arrival and leaving times, and many other measures. One point they emphasized is that the individual intake interviews provide an opportunity to discuss what can make mediation safe for both parties. They pointed out that supporting abusers in mediation as well as victim/survivors makes it more peaceful for both parties during and after the mediation. This approach contrasts with court, which tends to escalate defensiveness and conflict, with more risk of abuse after a hearing. They reported that most clients tell them that they prefer mediation and are relieved when it calms down their conflicts, with both parties being treated with respect as well as knowing that they are taking protection issues seriously.

I then focused on the third question, which was how to adapt the mediation process for high conflict personalities, which includes those with a history of domestic violence as well as those without such a history. My emphasis was on calming the parties with lots of empathy, attention and respect for  both of  their concerns; then really engaging them in problem-solving, by teaching them how to make proposals, how to ask questions of me and the other party, and how to respond by simply saying “Yes,” “No” or  “I’ll think about it.”

This structured approach helps the parties feel less defensive, as the focus is on the future rather than their past behavior, conflicts and problems. It is a totally positive approach, focusing the discussions on future choices and possible consequences of those choices, and emphasizing that all of the decisions are up to the parties in mediation. This avoids power struggles with the parties over reaching an agreement that is directed too much by mediator. Experience shows that high conflict people will reject anyone else’s terms of agreement, unless they have meaningfully participated in developing the terms of the agreement themselves.

The training participants were from several states and all really experienced. We were very impressed with their willingness to practice doing screening interviews and working on areas that “pushed them past their comfort zones,” as Claudette liked to say. I learned a lot and really enjoyed working with everyone present!

For those interested in learning more about these screening and mediation methods, see the program for the APFM annual conference on October 16-19, 2014 at www.APFMnet.org.

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Bill Eddy is a family mediator,  family lawyer and family therapist, who has been providing divorce mediation services for over 30 years. He is a Founding Board Member of the Academy of Professional Family Mediators. His website is www.HighConflictInstitute.com.

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Congratulations to Justice Victoria Starr on her Appointment to the Ontario Court of Justice

Justice Victoria Starr

I cannot imagine a better family judicial appointment than that of our former intern and mediate393 roster mediator, Justice Victoria Starr.

I first met Victoria when she was an articling student and I was a young family lawyer. Victoria proved that you can always have influence, no matter how young and inexperienced you can be. She was smart, passionate, committed and “real”. She helped me in my fledgling family law practice enormously.

Victoria started her family law practice in earnest right after that and she never looked back.  Justice Starr has practised exclusively in family law and child protection. For the past seven years, she has managed her own firm, Starr Family Law, Barristers and Solicitors. She is also a certified collaborative family law lawyer, accredited mediator and arbitrator.

Justice Starr  was one of our best roster mediators at mediate393, where she provided her expert dispute resolution services to our free and subsidized mediation program. She was a frequent and generous speaker and teacher to mediators in training. To say she will be missed is a huge understatement.

Justice Starr’s commitment to justice has been exemplified through her work as a panel member for the Office of the Children’s Lawyer, representing children in child protection cases. She has also taught at Centennial College, and been a spokesperson for the Alliance for Sustainable Legal Aid. Justice Starr has volunteered with the Halton Women’s Centre, speaking on a range of topics including youth and the law, conflict resolution, violence against women, and family law.

Justice Starr’s contributions to the legal profession are further demonstrated through her role as past chair of the Family Lawyers Association and vice-chair of the Ontario Bar Association’s Family Law Section.  I am certain that her energy, commitment and ability to get things done will be sorely missed by many.

However, the bench is the place for people like Victoria Starr. That is where she will make her greatest contributions.  While we will miss Justice Starr’s integrity and perseverance as a roster mediator at mediate393, we are sure she will bring  these qualities and more to her well-deserved judgeship. We wish her all the best at the OCJ.

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How – and Why – Lawyers and Mediators Can Help to Make Mediation Work for SRLs

Julie Macfarlane self-represented litigants

Professor Julie Macfarlane

This blog post by Dr. Julie Macfarlane is re-posted from the National Self-Represented Litigants Project.

In my blog last week I referred to the frequent complaints I hear from lawyers and others in the justice system about the difficulty of reaching settlement in a case where one side is representing themselves.

I suggested that while it may indeed be more difficult for a case to settle when there is a SRL on one side, there are some fairly obvious reasons for this – and that if we were to examine these, we might be able to work to address at least some of them.

Criticism of SRLs for being settlement-shy is unfair if it does not also acknowledge the challenges to approaching a settlement for someone without counsel (more about that in a moment). It is also not very constructive. It is in the interests of everyone that SRLs can make better use of settlement opportunities – including but not limited to mediation – and can access practical assistance in negotiating acceptable solutions (interim, partial or complete) to their dispute.

We know that representation makes a difference in mediation – Beck & Sales (2000) report that representation affects party’s comprehension of mediation substance and procedure, and the National SRL Study (2013) found that SRLs often did not remember being offered mediation and many had minimal understanding of the mediation process.

This blog makes some initial suggestions – and hopefully begins a deeper conversation – about what we might do to make mediation work for SRLs.

In their shoes: the attitudinal dimension

If you are feeling exasperated with the last SRL you dealt with (as a mediator or a lawyer), or if you simply have not thought about this before – try imagining yourself in their place. Entangled in a bitter and apparently intractable conflict, perhaps one that affects crucial aspects of your life – family relationships, children, home, work – and finding that you cannot afford a lawyer or have already exhausted our available resources. You are struggling, spending every spare minute on your case, in order to do the very best you can. You are (naturally) highly invested in your case.

Then someone – the judge, a friend, a mediator – suggests settlement. Ask yourself, how might you react? “Seriously? You want me to mediate with him/her? Do you know that every promise s/he has ever made to me has been broken? And that s/he has a lawyer and I am all on my own standing up for myself here?”

Standing in these shoes, each of us might have a hard time with the concept of settlement. With this important acknowledgement in mind, how might lawyers and mediators help?

What lawyers and mediators can do

Hilary Linton of Riverdale Mediation – about to be honored with the Ontario Bar Association ADR Award of Excellence for 2014 – discusses some of the ways in which lawyers and mediators can help to make mediation work for SRLs in a chapter in Settling Family Law Cases – Practical Techniques for Neutrals and Advocates (ed. Lorne Wolfson, forthcoming Fall 2014).

  1. A mediator may need to spend more time preparing with a SRL than with a party who has a legal representative. This may be important to ensure that they are not overly intimidated by the process. As the lawyer on the other side, you might want to hire a mediator who you know will assist the SRL to think about interests and options in advance. If it helps the mediation go better, why not?
  2. Think about structuring mediation as a series of shorter meetings. Mediation is an exhausting process especially when you are emotionally invested. Don’t wear the SRL out and offer frequent opportunities for breaks.
  3. In some cases involving self-represented parties, it may be helpful to hire an evaluative mediator, or one who is at least willing to offer the SRL some private reality testing.
  4. Remember that as the lawyer for the other side you can still provide legal information – for example, information about legal procedure – to the SRL if your client is comfortable with this. If it helps to advance the party’s shared understanding of the process they are engaged in – and especially if it helps a SRL to make an informed decision – it is probably a good thing to offer.
  5. Be patient, courteous and always constructive.

National Self-Represented Litigants Project LogoA few other ideas from the NSRLP:

  1. Law students can be trained to be effective conflict coaches for SRLs going into mediation. They can work with a SRL outside the process – preparing and then debriefing after a session – and in some cases it may be appropriate for them to sit in as a support person.
  2. Mediation programs should consider offering orientation workshops specifically to SRLs. However well crafted, a flyer explaining mediation is too easily lost or put aside. Many of the fears and concerns that SRLs express about mediation need to be addressed in a workshop format with other SRLs. Some issues may be better discussed one-on-one with a mediation program staff person at intake.
  3. Keep offering mediation. One-time only offers are not enough. Many SRLs need time to figure out whether mediation can work for them and repeated suggestions/ invitations – including “talking about “talks” – are more likely to gain some traction.
  4. Lawyers who are experienced and sophisticated about mediation and collaborative negotiation can step up and play a leadership role here. The only thing worse for a mediator than working with an unbalanced table – a SRL on one side and a represented party on the other – is working with a SRL and a party represented by a mediation-unsophisticated / unfriendly lawyer. Collaborative family lawyers and lawyer/mediators are accustomed to the nuances of working towards settlement with the other side.

Why assisting SRLs to make mediation work makes sense

OK, so the world would be an easier place for other justice system participants if every SRL could have a lawyer. However, this is not about to happen.

Legal Aid Ontario recognized the importance of ILA in their recent announcement (http://legalaid.on.ca/en/news/newsarchive/1407-03_ilacertificates.asp). This is a significant innovation, but will provide ILA for a limited number of those who are currently self-represented in Ontario’s family courts.

As Hilary Linton’s paper illustrates so well, mediators and lawyers share a common interest in enabling SRLs to be functional in the mediation process.

1.           If you are a lawyer, very, very few of your clients are interested in the real time, costs and uncertainties of a trial no matter how much they huff and puff. And finding a settlement requires working with the other side – this is Negotiation 101.

In The New Lawyer (2008) I called this “conflict resolution advocacy”. Conflict resolution advocacy places “the construction and creation promotion of partisan outcomes at the centre of the advocate’s role, and see this goal as entirely compatible with working with the other side – indeed, it can be achieved only by working with the other side.”

2.           If you are a mediator, your responsibility is to develop and oversee a fair and effective process for the parties to use for negotiation. Working with SRLs requires special screening tools and pre-mediation preparation. The work that a mediator does to enable SRLs to be functional in the mediation process is consistent with their obligation as steward of a fair process – it does not compromise their objectivity, nor does not indicate partiality.

Redirecting our energy

Much energy is still being directed – by researchers, scholars and other commentators – towards repeating over and over that all would be well if those silly SRLs just went and hired lawyers, for goodness sakes. Tired of hearing this? So are we. Instead, let’s put our energy and our creativity into figuring out how to make the mediation process work if a party does not have access to counsel and to legal advice.

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