Welcome to our early winter! I wanted to let you know that I’ve added the areas of Fertility, Surrogacy and Adoption Law to my Family Mediation and Family Law practice. This is a rapidly evolving and changing area of the law. Increasingly, people are deciding to have children later, thus often necessitating these new ways of procreating. Legal work and legal advice are essential in order to protect both the donors and the donees. I’ve added this practice area so as to be able to assist the increasing number of individuals and partners who have decided to engage in these processes.
“Whom do the eggs belong to?”
In a recent Ontario Court case, S.H. v. D.H., 2018 ONSC 4506, the parties had purchased donor embryos that were in storage at a third party company. Subsequently, they separated. The Respondent – the woman – wanted to have the egg (there was one viable one remaining) so that she could use it to have another child. The Applicant husband objected. The Judge held that the egg was family property and that it was the joint property of the parties and ordered that the wife pay the husband half the price that they had paid to purchase the egg, in order to buy him out. His Honour’s Reasons included that, in his view, the contract the parties had entered into on the purchase of the embryos clearly stated that, if the parties were to separate, the wife would have the right to the eggs. This is an interesting and controversial case. To read the case, press the link here.
In closing, please forward my article and spread the word to your friends and colleagues who would benefit from my expertise in this most important and timely area of the law.
Jerry and Sue have been married 21 years. They have 3 children all in high school. Jerry has a high level position at the bank and Sue is a high school teacher. Their relationship has deteriorated to the point where either they go long periods without speaking to each other – like two ships passing in the night – or when they talk it invariably erupts into a shouting match. They both have had enough and have decided to separate.
They’ve heard of a process called mediation and that it’s a positive way to divorce and much less expensive than Court proceedings. They’ve also heard that mediation is a process that can minimize the fallout effect of separation on the children and help the parties communicate after the divorce.
They’ve also heard that mediation only works where the parties have good communication to begin with.
Well, Dear Readers, I’m here to tell you that all of the above are correct except the last item. The premise that only spouses who have good communication can mediate their divorce is unrealistic. The primary reason why a marriage deteriorates, in my respectful view, is because couples don’t or can’t communicate with each other. For example, where one party wants to address issues as they come up and the other party sweeps issues under the rug; this will lead to an inevitable deterioration of the relationship as the pile under the rug becomes a mountain.
If mediation is only reserved for parties who can communicate with each other, then mediators would be out of business!
When working as a mediator, I work as a facilitator to get the communication going and continuing. I help to lower the decibel level when conflict inevitably arises, and I address “the elephant in the room.” I use empathy, active listening and reframing skills to help keep the communication going.
I also use my legal expertise as follows: I provide a wealth of legal information to the parties, information that each would be receiving from their separate lawyers. While I stop short of giving legal advice (as required by the Law Society Rules), I can and do provide a great deal of information to the parties. This results in a considerable cost savings to them. This, coupled with keeping the communications on track, provides the parties with the tools to negotiate the legal issues involved when parties separate.
As a mediator, I take into account that family law is 90% emotional and 10% law (see my blog on my web site). The mediator must be sensitive to the emotions in the room.
For an idea of how my mediation process works, I cannot say it better than two of my clients have said (see the first two testimonials on my web site’s testimonials page: the first by M. S., June 2017 and the second by his former partner A. D., June 2017). I’ve also included these below for your ease of reference:
My common-law partner and I split after a 17-year relationship. This was a difficult transition as we met in our early twenties and became adults together. In our journey, we bought a beautiful loft that we shared for over 10 years, became part of each other’s extended families, had mutual friends, and had two high maintenance dogs we love very much (W & L). We didn’t know what the future would hold, but being both respectful people we wanted the separation to go as smoothly as possible and not cause any further harm. We figured that mediation was the best choice for us as we did not want an adversarial process. After some research, we decided to engage Anne Freed to help facilitate our separation. Anne helped us identify our mutual goals and kept us focused on what needed to be done. Her friendly, fun and matter-of-fact personality helped us deal with these complex issues. Her vast knowledge of family law enabled us to feel better educated. As the high-income earner, this knowledge helped me truly understand what the law means for me. She was careful to remain neutral and to not give advice, but would present us with facts we should consider in our decision making. We had plenty of homework to complete on our own, which then kept some of the mediation costs down. At the end of the day, we had a draft separation agreement we could each take for independent legal advice to arrive at a final agreement, and have now started our new lives. That’s not to say this journey was easy; it was still a very difficult process that took a lot of time and effort. That said, we kept our goals in mind and got to the finish line as friends. Overall, I felt like we worked through the process as a team of three: Me, My Ex, and Anne.
M.S. June 2017
Anne was integral in ensuring my ex-partner and I were able to maintain clear and respectful communication with one another throughout the entire mediation process. Anne’s legal background was also key in keeping us well informed and aware of our options (and possible repercussions) regarding financial matters, which helped us in arriving at a fair agreement in the end. Lastly, she was conducive in my ex-partner and me solidifying an ongoing and friendly relationship to this day. It truly was a pleasure working with Anne, who maintained a professional, caring and considerate disposition throughout the mediation process.
A.D, June 2017
Mediation is not right for everyone, and there are several mediation models. For example, another model is where Sue and her lawyer and Jerry and his lawyer all attend at the mediation.
Divorce mediation is a process that requires courage by both parties to be able to sit face to face in a room with each other, with the help of a third party the mediator, and negotiate the hard issues. As well, for mediation to work, the parties should have the motivation to resolve matters. Jerry and Sue have both heard the horror stories from friends who’ve been in the Divorce Court process, and also of the huge legal fees they spent. This provides a strong motivation for them to try the mediation process. With the help of a strong and also empathic mediator, positive resolutions can be accomplished.
Joan (from my above blog) does a Google search using search words which deal with her objectives, for example the words “family law,” “family mediation,” “collaborative family law.”
Search Engine Optimization (SEO):
Beware of using SEO as the only way to choose the lawyer with whom you’ll meet. Be careful to widen your search further than the lawyers who come up on page 1 of a Google search! The lawyers’ prime position on Google search may have everything to do with their SEO expert’s ‘expertise‘ and much less to do with their legal skills! I suggest you take the time to do your research, and scroll past page 1 of the Google list, to pages 2, 3, 4 and so on, to find the lawyer who feels right for you.
Read the blogs and other information on the lawyer’s websites. They will provide helpful information for you, not just about the law but also about the lawyer. My objective when creating my website was to provide clear and informative information for people going through separation or divorce.
In the first meeting the lawyer should discuss the various processes one can use when one separates. Mediation is a very important process. If you are interested in using mediation, I recommend that you research before you meet the lawyer whether they are trained in and experienced in mediation. For example, on my website I’ve listed both my mediator credentials (Master’s of Law in Alternative Dispute Resolution (ADR)), plus my family lawyer credentials (my law degree Juris Doctor), plus my 37 years experience in family law and mediation.
Joan chooses three lawyers she found on her Google search who stood out for her. She reads their web sites from “cover to cover.” Joan is quite unique in this: I’m amazed at how many people come to see me without having read my website! Joan decides on one lawyer from the three, who most appeals to her. Her next step is to contact this lawyer, Liz Smith. Joan then prepares her list of questions and concerns and tries to get a good night’s sleep so her head will be clear before the meeting.
The client who doesn’t know what questions to ask: People are often worried about this when they meet me for the first time. In fact, I reassure them that, in my view, this is an excellent state to be in, as they don’t come with preconceived beliefs of what the law is and how they expect their case will go!
The Greek Chorus:
Be careful to take “legal advice” from friends, family, and neighbours! While it’s nice that they care about you and want to help you, be careful about taking their advice as the right advice for you. Everyone’s situation is different and unique. The divorce lawyer who follows the methodology of first doing a detailed interview with you to find out the detailed facts plus the emotional dynamics of your particular situation, is the best person to provide you with legal advice for your particular situation!
This method is great; however it’s sometimes difficult because people can’t remember who their lawyer was! My theory is that it’s a part of their life they want to put behind them; therefore they ‘forget’ their lawyer’s name! Also, your issues may be different from your friends’ issues. You need to find a lawyer who is a good fit for you! It may be helpful for you to meet with several lawyers in order to assess that.
Joan knows that she doesn’t have to hire Liz for ongoing work after the initial consultation if she decides to proceed with her separation. (See my above-mentioned blog on this.) This eases the pressure of having to make a decision in this meeting as to whether Liz will be her lawyer on her case.
“Go with your gut:” is good advice for many important life decisions. It can also apply when choosing one’s family lawyer. I’ve found in my 37 years of practice as a divorce lawyer and mediator, that often when clients decide to hire me “on the spot” after the first meeting, these become the most productive lawyer/client relationships.
Be careful of the lawyer who tells you only what you want to hear. Family law is not simple; and ‘wishful thinking’ will not get the job done for you! Instead, the lawyer can only advise a client after having thoroughly interviewed her/him regarding the facts and emotions surrounding their situation. See also my blog: “Family law and Divorce matters are 90% Emotional and 10% Law.”
“Sleep on it:”
When a person meets me for an initial consultation, even though they may tell me at the end of our meeting that they wish to retain me, I usually recommend that they ‘sleep on it.’ Joan, after a good night’s sleep, will read again in detail Liz’s web site, including her background, experience, blogs and articles, credentials, areas of practice and testimonials. If Joan has not been happy with her meeting with Liz, then she has the 2 other lawyers to contact. Then the same steps as above follow.
I hope my article has provided you with helpful tools as to how to choose the lawyer for your initial consultation. Please refer also to my web site, which provides a wealth of relevant information.
Feel free to pass this article on to friends or colleagues who may be ready to take this next step. And finally, just a gentle note that referrals for my divorce or Mediation services are appreciated!
Welcome – finally – to spring, or shall we say summer!
“Does having a first meeting with a divorce lawyer mean that your marriage is over ?” I will discuss today’s topic using the following hypothetical scenario:
The client – Joan – has delayed coming in to see the divorce lawyer – Liz Smith for – for precisely this reason. Joan is not ready yet to end the marriage. Also, Joan thinks she will have to retain Liz for the whole case if she decides to proceed. Both assumptions are incorrect, for the following reasons:
The purpose of the initial consultation is to provide information to Joan about her various process options should she decide to separate. They include mediation, traditional negotiation, collaborative law or Court. Also, Joan will discuss her situation with Liz, and from that, Liz will advise Joan of her and her spouse’s respective rights and obligations should they separate, and also about child custody matters.
The second purpose is for Joan to get a feel as to whether Liz could be the right lawyer for her, should Joan decide to proceed with a separation. ANSWER: There is no obligation for Joan to hire Liz after this meeting. However, the meeting does provide Joan with a good opportunity to see if Liz could be the right lawyer for her.
Also, a concern that many people have which holds them back from setting up a first meeting is: “Will my spouse find out about this meeting?” ANSWER: NO. The initial consultation and all communications between Joan and Liz, are strictly confidential and will be so forever whether or not Joan sees Liz again. Therefore, Joan’s spouse Jim will never know about this meeting, unless of course Joan wants to tell him.
So the answer, Dear Readers, is a resounding No! The initial consultation does not mean the marriage is over! In fact, for many people, it’s a positive experience.
Of course, the decision to schedule the first meeting with a lawyer is a difficult one, and takes immense courage in the face of the stressful situation they are in.
However, I’m pleased to say that almost always in my 37 years of practice, I have found that once a person takes this initial step, her/his demeanour changes in the course of our meeting, from sad, fearful and as if under a dark cloud, to more confident and as if the cloud has lifted and the sun’s come out!
In our scenario, Joan leaves the meeting in a far better place than she was at the start. She now has the information she needs to be able to decide whether to stay in the marriage or leave, or she can keep her new information in her back pocket to take out perhaps at a later date. To use the old adage: “Knowledge is Power!”
In addition, as Joan has a good feeling about Liz, she has taken care of a key matter when one separates: the decision as to whom her lawyer will be.
Next topic: how does one choose the lawyer or mediator to see for the initial consultation? Stay tuned!
Please feel free to pass this article on to friends or colleagues who may be considering but fearful of taking this step.
And finally, just a gentle note that referrals for my family law or mediation services are much appreciated!
“KILL ALL THE LAWYERS!” That’s the theme of Season 2 of the popular TV show – “The Good Fight” – which aired this month. I’m sure the ratings will be good!
As a lawyer, I ask: Why is there seemingly such a “hate on” by the public for lawyers? I surmise that, one reason is, that lawyers are expensive. Especially in divorce matters, fees can run up into many thousands of dollars.
So, let’s pose the question: is it a given that your divorce will be expensive?
Consider what’s at stake – including the many years of building the relationship and all its complex components, including the children and their care, health and employment issues, properties amassed and debts incurred. It’s logical that the work necessary to help you extricate from this complex structure and build with you a new and satisfactory (to you) legal structure going forward, will also be complex, and therefore not ‘cheap.’
So, you ask, is there any way to keep the costs down in Family Law matters? The answer, dear Readers, is a resounding YES! The following are some ways you can keep your costs down in your divorce:
Organize your financial papers before you see your lawyer. Chronologies are good. Bringing a shoebox full of papers to your lawyer is not cost effective!
See a therapist while you’re going through the separation and divorce process. As you all know, there are complex emotions happening when one decides to separate. Seeing a therapist is cost efficient as it will lower the time you will need to spend on this important part, in your lawyer’s office.
Consider using Mediation. This is a process where a third party sits down with both spouses and helps them resolve the legal and financial issues arising from their separation. The mediator usually charges half her hourly rate to each party: this can result in large cost saving to the parties. (Note: Mediation is not appropriate in all situations.)
Hire an experienced family law lawyer to be your mediator. When I am retained as the mediator for the parties, I provide them with a great deal of legal information, stopping just short of legal advice [as not allowed by the Law Society]. Much of my process as a mediator for both parties is the same as when I’m acting as a lawyer for one party. This includes working with the parties to gather the necessary financial information, and informing them of the law.
Your mediator should also be an experienced ADR professional i.e. have extensive training and experience in Alternative Dispute Resolution. This specialized expertise will enable your mediator, in addition to considering the law, to consider also each party’s respective needs and interests, which may be outside of the law. This will help the parties negotiate a settlement satisfactory to both.
With your mediator, you and your spouse can work out a great deal of the issues, so that less time needs to be spent by each to obtain “ILA” (independent legal advice) from your respective lawyers, during or at the end of the process.
These are my tips for today, dear Readers, to keep your costs down in a divorce. I have many more suggestions, to be explored in future articles. For related and useful articles, see my blog posts at www.annefreed.com/blog.
On January 30th, 2018, I was featured in a LIVE VIDEO with my friend Karyn Filiatrault, involving a LIVE conversation between Karyn and myself as a senior family law lawyer and mediator, about navigating separation and divorce. If you or someone you know is going through this difficult life change, I shared with Karyn some valuable information that Karyn wished someone had shared with her when she was going through this years ago. We chatted about questions to ask a divorce lawyer, what your options are, what you should NOT do, what happens to your home, and more. Grab a glass of wine and enjoy the video. Please feel free to pass this on.
Firstly, I want to wish you all a Healthy and Happy New Year! With the New Year often come resolutions – to be healthier, to be happier, to work less, to work more, and so on.
The resolution to be happier may include that you’ve reached an awareness that your marriage is not working and that you, or both you and your spouse, are unhappy. You don’t know what to do, you are stressed out, anxious, not even sure you want to separate, worried that there’s lots that you may lose and lots at stake, including the security and well-being of your children and including what will happen to your assets, especially your home.
Your friends – and perhaps your therapist if you have one – may have suggested that you see a lawyer. You are very worried about doing this as you feel that taking this step will mean that you have made the final decision to end your marriage and that there’s no turning back. This may feel like you would be “putting the nail on the coffin!”
In fact, an initial meeting with a lawyer is a positive step, and here’s why:
The lawyer (he or she; I will use she) will ask you your objectives, and where you feel you are at on the continuum of decision making – undecided, ambivalent or decided.
She will review with you in detail the facts of your situation. Your meeting will be strictly confidential. In fact, your spouse will never know about it if you don’t wish to tell him or her.
She will tell you that you have many options, called “process options,” should you decide to separate. They include using mediation, arbitration, traditional negotiation, collaborative practice or court. See “The Six Process Options” on my website and also my article: “50 Ways to Leave Your Lover.”
The lawyer will work with you to help you decide which process option would be best for you and your children.
She will discuss with you various possible strategies moving forward, for example, the different ways your spouse can be presented with your decision. She will help you choose the optimal way for you and your family.
The lawyer will provide you with legal advice – based on your objectives, the facts and your situation – regarding child custody and support, spousal support and what would happen to your assets. This will include of course a discussion regarding your matrimonial home, and how that would be dealt with at law.
Conclusion: You will leave your lawyer’s office holding the most important asset you need at this point: Knowledge! Equipped with this new information, you will find yourself in a far better position than before your visit. You will be able to reflect in a calmer manner and decide on what your next steps will be, whether to remain in the marriage but with a better knowledge of your/ your spouse’s respective rights and obligations should you separate, or whether to start preparing the steps to leave your marriage.
I’ve seen clients leave our initial consultation with their heads held higher and often smiling. This is because they are now more focused and have a much better understanding of their situation and where to go, or not go, from here.
In fact, it often seems that clients leave the first meeting a head taller! This is because, to use the wise old adage: Knowledge is Power! I’ve met with people who’ve called me a few days later ready to start the process to separate, people who have kept my card and called me a year or even five years later, and people I don’t hear from again.
So, in conclusion dear readers, for those of you or your friends who are in this situation, I urge you to take the positive step of meeting with a lawyer.
Next article: Meeting with the lawyer: How do you decide who you will meet with? Stay tuned…!
Welcome to my fall newsletter and blog. I’ve concluded, having practised as a divorce lawyer for 36 years, that family law and divorce matters are 90% emotional and 10% law. Also, when a case is called complex, I believe it’s the emotional part that is the complicating factor, rather than the law.
“WOMAN REJECTS $1BN DIVORCE SETTLEMENT AS JUDGE WARNS TRIAL ISN’T GOING TO BE PLEASANT.”
I came across the above headline recently on Facebook. It drew my immediate attention. New Yorker Harry Macklowe, 80, offered his wife Linda, 79, almost half his fortune to settle, but Linda wanted to go to Court. Manhattan Justice Laura Drager warned the couple: “Your personal lives, business assets, everything will be displayed for everyone to see, and… “I am concerned about what your expectations are for what this trial is going to be like. It is not going to be a pleasant experience.”
Linda is believed to have been angry due to Harry’s leaving her for a woman 20 years younger.
This case is a graphic example of my theory that divorce/family law is 90% emotional and 10% law. Hence lies the complexity, and along with that, the cost,
Experts can be retained for complex financial issues: business valuators to value a business, real estate appraisers to value real estate, and accountants to assess self-employment incomes. Divorce lawyers are experts in the law, however often have received no training in emotional dynamics. Yet we must conduct our cases with full awareness and ongoing sensitivity to the constantly changing emotions at play.
The collaborative process recognizes this, and mental health professionals can be retained as part of the multidisciplinary team. However, they are not always retained by the clients. Collaborative and mediation train lawyers to put on a ‘different hat’ and to explore and be aware of the emotional underpinnings of their cases. They must explore the “whys” of their clients’ instructions, rather than simply take instructions.
Even if mental health professionals are retained, family law lawyers must still conduct their cases with a kind of emotional expertise and awareness that is to be distinguished from therapists’ expertise.
Also, legal fees will increase exponentially with the “emotionality” of the case. Examples include:
Wife finds out that her husband is having an affair with his secretary. She hires a lawyer stating: “I want to destroy him!” In this case it’s the duty, in my view, of the wife’s lawyer to explore with her the underlying reasons for her instructions and not to simply ask for a huge retainer to carry them out.
When a husband can’t let go emotionally of his wife, therefore allowing ongoing delay in his case to the point that Court litigation must be commenced because the legal limitation period is almost up.
An example where legal fees did not escalate is the following:
The parties had had a lengthy common law relationship which had broken down irretrievably. They retained me as their mediator to help them negotiate a separation agreement. Both parties acknowledged that they were hurting emotionally. It was essential that I was always cognizant of this emotional dynamic, as it sometimes was “the elephant in the room.” I used caucusing (i.e. meeting with each party separately), as an effective way of addressing, separately each party’s emotional pain. At the same time, both were determined to be respectful of each other. They worked at resolving the legal issues in as positive and constructive a way possible. As a result, they reached solutions they both could live with. As well, their fees were cost-efficient.
One might erroneously conclude, following from my 90/10 theory, that a therapist and not a lawyer should be retained to help parties resolve their matrimonial matters. The problem with this is, while emotions color and often inform the legal matters, the issues which must be resolved are legal issues, requiring legal expertise. They include the issues of child support, spousal support, marriage contracts (“pre-nups”), distribution of property, etc.
Also, emotion directly impacts on the legal issues. For example, in the case of the wife who says she wants to destroy her husband. She is legally entitled to spousal support. However, if she destroys her husband financially, she will get nothing!
I will be continuing to write to you about this subject, as it is in my view a phenomenon that needs to be explored in depth. Stay tuned for more to come!
We are deep into the summer holidays and vacations are beginning. Suddenly my vet is going to be away for 3 weeks and I’m feeling desperate about that! Then I realize that no one is indispensable! In fact I want my vet to have a peaceful, restful and fun holidays so that he comes back ready to take maximum care of my beloved pets! In that vein, I want to wish you all a happy, restful and fun July 1 holiday weekend. We all deserve to have vacations and I am sure studies show that people are the better for having had a break from their work stresses and demands. I am working on an article on how to see going to your lawyer, when you have finally made the decision to leave your marriage, as a positive first step to a happy future for you and your children. I spoke with someone the other day who said that once she met with and decided to retain her lawyer, she experienced for the first time a sense of relief in her very stressful matrimonial matter.
Watch for my upcoming blog wherein I will discuss how to re-frame your legal road ahead as a positive step to your new and happy life. This is particularly the case when you choose, if appropriate for you in your situation, a collaborative process or divorce mediation as your forum for resolving your divorce matters. More about that next time.
In the meantime, Happy Canada Day and 150th birthday to our great country! Aren’t you glad that we are Canadians especially at this turbulent time in world politics!
I’m so pleased to announce my new website, hot off the press! My website designer Steve Smiley, RGD from CatsMedia.ca ( yes that’s really his name!) and I have designed it to be very user friendly and to have the information that you need at your fingertips.