Mediation for marriage contracts or cohabitation agreements

Mediation is an excellent way to have the tough talks about “what if”.mediation for marriage contracts

Let’s face it, most people deciding to spend their lives together aren’t planning to separate. However, we don’t plan to have our house go up in flames when we buy insurance either. We plan for the worst and hope for the best.

The vast majority of people who separate do not have marriage contracts or cohabitation agreements. For some, that’s absolutely fine, as the default law provides a predictable and balanced outcome.

However, there are many situations when the default law doesn’t meet the needs of the couple. For example, if one person is putting the majority of the funds into the home that the couple will live in. In that case, it makes good sense to have a marriage contract, to establish what will happen with those funds if there is a separation. Not having an agreement can be quite costly.

Raising the issue of a marriage contract can be challenging. It’s not at all romantic. It’s even worse than thinking about preparing a will (which many people also avoid). To some, it signals a complete lack of trust in the relationship.

However, it can be seen as a good opportunity to establish the expectations for the relationship, and to give a level of comfort so that the couple can put any concerns about “what if” aside, and just be together.

Mediation is extremely well-suited to marriage contracts, because the whole idea is to have respectful, well-informed discussions to help in problem-solving. The couple crafts, together with the mediator’s assistance, their mutual expectations. Compare this to one person going to a lawyer and having that lawyer prepare an agreement to be given to the other person. There’s no cooperation, or joint discussion of interests. In fact, receiving correspondence from a lawyer can be unpleasant, no matter how the lawyer tries to be non-threatening.

If a couple works in mediation to come to the terms of a cohabitation agreement or marriage contract, Lawyers would still be involved in reviewing or preparing the draft, based on the decisions made in mediation, and providing independent legal advice to the parties. However, the mediator can help establish expectations and smooth the way for this review process.

Mediation is a much less threatening way than the traditional legal approach to approach the thorny issue of a cohabitation agreement or marriage contract. And then, the couple can put the worry out of their minds, and file the contract with their insurance policy, just in case.

Are children’s cell phone costs to be shared by separated parents?

The Federal Child Support Guidelines allow for the sharing of “special or extraordinary” expenses for children, proportionate to their incomes.  This is in addition to basic child support calculated under the Guidelines.  canstockphoto1399762

The issue of what is “special or extraordinary” comes to court often.  Even more frequently, this issue is part of out-of-court discussions, negotiations, and arguments.

Children have so many expenses.  What is extra, and what is not? These cases are really fact-specific.  Typical section 7 expenses are child care expenses and uninsured medical and dental expenses, however, the list of potential other expenses is limitless.

Justice John Harper of the Ontario Superior Court of Justice found in Marunic v. Liberty, 2014 ONSC 957, that given a total family income of over $120,000 per year, and the fact that the cell phones were used by the father to communicate with the children directly while in the mother’s care, because of poor communication between the parents, that the cell phone costs were “special or extraordinary” under section 7 of the Guidelines.  The father was therefore required to pay a share of the costs.

In reaching this decision, Justice Harper considered a decision of the Ontario Court of Appeal, Andrews v. Andrews (1999) 45 O.R. (3rd) 577, where the court set out the requirements for an expense to qualify under section 7:

  1. the expense must be extraordinary;
  2. the expense must be necessary in relation to the best interest of the children; and
  3. the expense must be reasonable having regard to the means of the parents and their spending patters for the children during cohabitation.

He referred to another decision of the Ontario Court of Appeal, Park v. Thompson (2005), 77 O.R. (3d) 601, which found that the cell phones did not qualify as a special or extraordinary expense.  However, each case had to be examined on its own facts. In Marunic v. Liberty, they did qualify.

There were other fairly typical claims considered in this case.  The mother was asking for contribution to expenses for competitive swimming of $3,030 per year, football costs of $350 per year and a school trip costing $350.  The father said that these expenses should be part of base child support, and even if they were not, he did not consent to the swimming expense and it was not reasonable given his income.

Justice Harper noted that there was no requirement that the parents consent to the expense before the child was enrolled in activity.  The father did not object to the child participating in swimming, only to sharing the costs.

The swimming, football and school trip costs were found to be extraordinary, given the mother’s income of $80,000, and in the children’s best interests.  Those costs and the necessary equipment for the sports were to be shared by the parents in proportion to their income. The resulting cost of approximately $64 per month to the father was reasonable.

Voluntary retirement doesn’t mean spousal support ends

Often when parties separate, they include a clause in their separation agreement that says spousal support can end or be reviewed when there is a “material change of circumstances”.  What does this mean if the payor chooses to retire?

In the case of Walts v. Walts, Justice Minnema of the Ontario Superior Court of Justice found that the husband’s planned voluntary retirement at age 55 was not a material change of circumstances, and that spousal support was still payable at the same rate as if he did not retire.

In this case, the parties had been married for 29 years.  The husband was now 55 years old and the wife was now 53 years old.  They separated in 2008, and agreed to spousal support of $1,584 per month based on his employment income of $87,763, and her disability income of $24,771.  There were some minor adjustments over the years to keep up with the cost of living.  The husband’s pension entitlement had been divided after separation, however, the wife could not yet access it.

The husband stated that he had always intended to retire at age 55.  Since separation, he had a heart attack, and that reinforced his wish to retire.

The judge found that the medical evidence did not establish that the husband needed to retire for health reasons.  The retirement was voluntary.

The test for a “material change of circumstances” is set out by the Supreme Court of Canada in Willick v. Willick as,

a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.

In this case, because the husband’s retirement was anticipated at the time of separation, it was not a material change of circumstances, and therefore could not be the basis for a change in spousal support.

To the husband’s credit, he brought this motion before he actually retired, so that he still had employment income from which to pay support.

The lesson here is that, especially in long-term marriages with indefinite spousal support obligations, it is extremely important to deal with the issue of retirement in the separation agreement.  Retirement is foreseeable, and therefore the parties’ intentions about the timing of retirement and its effect on spousal support need to be dealt with when the agreement is negotiated.

New Year, New Plans – best practices for separated parenting

The new year is a time to organize, and plan forward.  We often make resolutions, trying to make this year better than the last.

Separated parents can use this time to set expectations for the upcoming year, and avoid last-minute conflicts.

If you already have a schedule in place for your children, you could look at where the holidays will fall, and plan around them as necessary.  For example, where are the children for Easter? Do any changes need to be made in the days before or after? When are extended family celebrations?  These issues are much easier to resolve now than they are the week before the holiday, when extended family plans have already been made.

If parents are able to communicate reasonably well, an initial planning meeting early in the year may be a good idea.  Once the tentative plans are made, online calendars can be helpful for updates and reminders.

If you are not at a point where an in-person meeting is comfortable, initial plans could be made by email, or with the assistance of a mediator.

Google Calendar is an online free resource where parents can establish and update a calendar for the children.  This can be helpful not only for the regular schedule and holidays, but also for information about school trips, events, extra-curricular activities, and children’s social activities.

There are other more specific tools for separated families, including Our Family Wizard, ShareKids and Two Happy Homes. There are fees for some of these services, but they are worth exploring to see if your family would benefit from the added features.

Parenting through separation is challenging.  The best gift that you can give your children is reduced conflict.  By planning ahead of time, you can take the first step down that path.

Online Dispute Resolution For Separation and Divorce

Advances in technology have brought huge opportunities for family mediation. Video and audio conferencing, and shared document and calendar programs provide options to separating couples that help them come to agreement and minimize conflict.

In negotiating separation agreements, it is usually best to have the parties together in the same room, as the subtleties of communication are more apparent, and there are fewer barriers to coming to resolution.

However, with the many demands on our time, including work and travel, sometimes being able to sit in the same room at the same time is just not possible, or would lead to unnecessary delays. When this is the case, options such as video or audio conferencing should be considered. Recent technological advances have made these options much more accessible. A person with an internet connection and computer or tablet can use Skype, GoToMeeting, or a similar platform, and be in the same room as the other party and the mediator for no additional cost to the participant.

Other online options, such as sharing disclosure documents through services such as Support Information Exchange, looking at joint calendars through services such as Google Calendar, Our Family Wizard, or Two Happy Homes, should be considered in appropriate cases. These, or similar services can help reduce conflict by providing some structure and a layer of accountability.

Online Dispute Resolution was a major topic at the recent annual conference for the Association of Family and Conciliation Courts in Los Angeles. The number of products available has increased dramatically over the past several years, and innovation in this area continues.

With mediation, we need to be creative both in designing the process to be followed as well as in generating possible outcomes. The solution must fit the family. Fortunately, the options are expanding.

Some light reading

It can be helpful when separating to consider different options and perspectives.  I’ve put together a library of some resources that may be helpful. These are in no particular order, and different ones will resonate with different people.

Parenting After Separation

  • The Truth About Children and Divorce: Dealing with the Emotions So You and Your Children Can Thrive (Emery, R.E.)
  • Keeping Kids Out of the Middle: Child-Centered Parenting in the Midst of Conflict, Separation and Divorce (Garber, Benjamin D.)
  • Listen to Me! Your Child and Your Divorce (Gottlieb, Daniel)
  • Mom’s House, Dad’s House (Ricci, Isolina)
  • Mom’s House, Dad’s House for Kids (Ricci, Isolina)
  • Parenting After Divorce: Resolving Conflicts and Meeting your Children’s Needs (Stahl., Phlip)
  • Parents are Forever: A step-by-step guide to becoming successful coparents after divorce (Thomas, S.)
  •  In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce (Johnston, J., Roseby, V., Kuehnle, K.)
  • Helping Your Kids Cope with Divorce the Sandcastles Way (Neuman, G., M)

Separation/Divorce generally

  • Surving Your Divorce: A Guide to Canadian Family Law (Cochrane, M. G).

Parenting generally

  • Kids are Worth It: Giving Your Child The Gift of Inner Discipline (Coloroso, B.)
  • Raising Your Spirited Child: a guide for parents whose child is more intense, sensitive, preceptive, persistent, and energetic (Kurcinka, M.K)
  • Kids, Parents, and Power Struggles (Kurcinka, M.K.)
  • 7 Things your teenager won’t tell you: and how to talk about them away (Lippincott, J.M. & Deutsch, R.M.)
  • How to Hug a Porcupine: Negotiating the Prickly Points of the Tween Years (Ross, J.A.)
  • The Whole-Brain Child: Revolutionary Strategies to Nurture your Child’s Developing Mind (Siegel, D. J., & Bryson, T. P.)

Civil Partnership in the UK Treated as Marriage in Ontario,

Many jurisdictions do not allow same sex couples to marry. Ontario does not differentiate between same sex and opposite sex marriage. Families are more and more mobile, and may move from one type of jurisdiction to another. This leads to interesting issues. If parties come to Ontario from a jurisdiction that does not allow them to marry, but they have gone through an alternate ceremony similar to marriage, are they married under Ontario law?

In Hincks v. Gallardo, the parties entered into a civil partnership in the UK. As they were a same sex couple, they were not eligible to marry in the UK. A civil partnership in the UK provides the parties with essentially every material right and responsibility arising from marriage, but the parties are not married.

The parties moved to Ontario. They did not marry here. They then separated. One party started an application for divorce and equalization of net family property. In Ontario, these remedies are available only to married spouses.

However, in Ontario, both same sex and opposite sex couples may marry, and there is no difference in any rights or obligations arising from marriage.

Previously, in Halpern v. Toronto, the definition of marriage as “the voluntary union for life of one man and one woman to the exclusion of all others” was found to violate the equality guarantee in the Canadian Charter of Rights and Freedoms and was reworded to “the voluntary union for life of two persons to the exclusion of all others. This has since been codified in the Civil Marriage Act.

The issue before this court was whether the couple should be treated as married or common law, for the purpose of divorce and equalization of family property.

Both the Attorneys General of Canada and Ontario intervened. The Attorney General of Canada stated that the question of whether parties are married is to be determined by the law of the place where the ceremony took place. As the UK does not recognize the parties as married, Canada should not recognize them as married.

The Attorney General of Ontario stated that the couple should be treated as married, as the definition of “married spouse” in the Family Law Act must be given a broad and liberal interpretation.

The judge found that the parties should be treated as married in Ontario, therefore the claims for divorce and equalization of family property may proceed. She stated:

Failing to recognize this UK civil partnership as a marriage would perpetuate impermissible discrimination primarily because in the UK these parties could not marry because of their sexual orientation, but had to enter into a civil partnership instead.

So, although this couple is not married in the UK, the couple is married in Ontario. This may not be the end of the matter, given the broad-reaching impact of this decision, an appeal would not be surprising.

Upcoming AFCC Information Night in Oakville for Family Professionals

An Evening of

Film, Refreshments, Appetizers, & Discussion of Family Law Dilemmas For:


Wednesday November 21st, 2012
5:00pm – 7:00pm
Oakville Conference Centre
2515 Wyecroft Road Oakville, Ontario L6L 6P8

Lawyers are eligible for 1.5 substantive hours towards CPD requirements.

The Program will include:

  • Brief introduction to the AFCC Ontario Chapter by President-Elect, Dena Moyel
  • Membership information with regard to AFCC and AFCC Ontario
  • Presentation of key issues, concepts, and practice dilemmas with regard to Parent-Child Alienation
  • DVD presentation of popular film clips related to our topic, followed by stimulating panel discussion
The Panel will include:

  • Moderator: The Honourable R. John Harper, Senior Judge of the Family Court (SCJ),
  • Jacqueline Vanbetlehem, Family Reintegration Therapist,  s. 30 Assessor, Parenting Co-ordinator, Mediator/Arbitrator
  • Robert Martin, Family Lawyer
  • Lydia Moritz, Family Lawyer

 * AFCC Vision: A justice system in which all professionals work collaboratively through education, support & access to services to achieve the best possible outcome for children & families.

PLEASE REGISTER BY NOVEMBER 12th, 2012.  There is no registration fee for this program.

To register, please contact Stacey Leger at 905-845-4314 or

Ontario Court of Appeal respects parties’ agreement to keep disputes out of court

The Ontario Court of Appeal, in Grosman v. Cookson, 2012 ONCA 551, decided that the fact that a support recipient files a separation agreement with the court for enforcement does not mean that the court can decide whether the amount of support should be changed if the parties have previously agreed to mediation/arbitration.

In this case, the parties had agreed in their separation agreement that if there was an issue with the amount of support, they would address that issue first through mediation, and then if there was no resolution, through arbitration with a named mediator/arbitrator.

The husband’s income had decreased. He asked for a reduction in support. The parties attended mediation, but there was no settlement. An arbitration was scheduled, but did not go ahead.

The husband stopped paying support. The wife then filed the separation agreement with the court, so that the Family Responsibility Office (FRO) would enforce the support payments.

The husband filed an application with the court to reduce support. FRO notified the husband of an intention to suspend his drivers’ license because he was in arrears. The husband then brought a motion to stop that suspension of the license. The court allowed that motion, on terms that the husband pay a certain amount of support.

The wife then brought a summary judgment motion, stating that the husband’s application to reduce support should be dismissed, because the parties had an agreement that their disputes were to be resolved through mediation/arbitration. That motion was dismissed.

The Ontario Court of Appeal allowed the wife’s appeal, finding that the Family Law Act and the Enforcement Act, when read together, allow parties to opt out of litigation and submit to private mediation/arbitration for future disputes. The enforcement provisions, allowing parties to file agreements with the court for enforcement by FRO do not invalidate provisions in separation agreements requiring mediation/arbitration and do not give the court jurisdiction to decide changes in support in the face of such provisions.

This is an important decision, because it shows that the courts will show great deference to decisions that individuals make about how their future disputes will be resolved.

Parties agreeing to mandatory mediation/arbitration clauses must realize that they will not have recourse to the court. They are bound by that choice, and cannot count on having the court as a last resort, even if the court is used for enforcement of their agreement.

Mediation/arbitration can be a very effective way to resolve disputes. It is private, and can be faster and better tailored to the parties’ circumstances. However, parties need to consider carefully whether it is and will be appropriate for them in all circumstances. An example of a case where there was such a concern, arising from power imbalances, is Wainwright v. Wainwright, set out in the previous blog post. If recourse to the court may be needed, a mandatory mediation/arbitration clause should not be included in a separation agreement.

Mandatory mediation or arbitration – When is it not in the best interests of the child?

What happens when parents have joint custody of a young child, and can’t communicate regarding major parenting issues? Often, parties will agree to a dispute resolution process of mediation, followed by arbitration if there is no resolution through mediation.

In the recent case of Wainwright v. Wainwright (2012 Ont. S.C.J.), the judge was quite concerned about the inclusion of such a clause in a final order, even though both parties consented to it.

The parties were the parents of a four-year-old girl. They separated when she was one year old, following an incident when the father was charged with assault. He subsequently pleaded guilty.

Both parties had been having significant time with the child since separation. They had not spoken since separation. They had very different views regarding the child’s schooling and other major issues. The judge said that this case was characterized by

an overwhelming lack of trust of the other one on the part of both parties, significant level of fear on the part of Mrs. Wainwright in relation to Mr. Wainwright and an inability to communicate with each other directly on any issue.

The parties’ attempts to use a communication book were not successful and there was no communication by text or email.

At trial, the parties consented to a clause whereby any parenting issues where there was no agreement would be resolved through a process of mediation, followed by arbitration if necessary.

The judge had concerns about the extent of the mother’s fear of the father and the father’s difficulty in focusing on the needs of the child when they conflicted with his own needs. She ordered that the parties consult with each other regarding any major decision regarding the child’s health, education or welfare. With respect to where the child was to attend school, if there was no agreement, the mother was given final decision-making authority.

However, if the parties were unable to agree on other parenting issues, they were required to attend an intake for mediation. If mediation did not proceed, or if it did proceed and was unsuccessful, the parties could either proceed to arbitration or commence a court process.

Despite the fact that the parties had agreed to a dispute resolution clause requiring them to mediate and then arbitrate any disputes, and that they reached such an agreement through experienced counsel, the judge found that she was not bound to include that dispute resolution clause in her order, as such a clause was not in the best interests of the child in these circumstances.

The inclusion of such a clause could stop the parties from going to court to deal with disputes involving the child.

The evidence in this case regarding the power imbalances left the judge with serious concerns about whether it was appropriate to include mandatory mediation and arbitration. The power imbalances could lead to the case not being appropriate for mediation or arbitration.

Mediators accredited by the Ontario Association for Family Mediation (OAFM) are required to screen for power imbalances, and either adjust their processes accordingly, or decline mediation where indicated. Arbitrators are required by the Ontario Arbitration Act to screen for power imbalances.

It was appropriate to require an intake for mediation, but if the power imbalances at that time or about that issue indicated that mediation was not appropriate, the best interests of the child required that the parents have recourse to the court process.

The judge struck a balance between the parties’ expressed desire to address issues through alternative dispute resolution processes and the child’s need to have decisions made, in the event that power imbalances made such processes inappropriate.