With fewer lawyers choosing to handle divorce and child custody matters, and full caseloads becoming the norm among the growing minority who do, the family law profession appears headed for a crossroads.  However, mediation has risen to the occasion to resolve divorce cases and is becoming the preferred alternative.  Read more

Skilled family law mediators and negotiators will emphasize to the parties the things that they can obtain through a settlement, but not from a court.  Click here to find out 18 of them.

Click here to read why this self-represented litigants epidemic requires immediate systemic action.

Click here to read how a child's views and preferences are no longer a secondary consideration.

If you are a Mediator or someone you care about is going through mediation, this article by Randy Pepper on Lawyers Weekly is a must read.

How can you improve the chance of reaching a settlement acceptable to your client at mediation? Here are 10 practical tips to achieve a better result.

1. Defining your objectives — mediator.  As advocate one of your key objectives in mediation should be to persuade your mediator to act as your client’s advocate in the private caucus sessions with the other side. This requires you to anticipate your mediator’s questions and objectives in the mediation
process. When the negotiations get difficult, you want your mediator pushing the other side to an acceptable settlement.

2. Mediator selection.  Most lawyers have a small group of mediators they are comfortable using. However, if that group is not producing acceptable results or your opponent is unwilling to accept any of your proposed mediators, consider expanding your group. Identify a mediator who is willing to discuss his or her approach to the mediation process. Many mediators now have websites outlining their background, expertise and approach. In addition, feel free to call proposed mediators and discuss their approach. Ask them the tough questions: for example, how do they deal with deadlocked negotiations and how do they respond to a party that refuses to make an offer?

3. Mediation brief.  Many lawyers deliver mediation briefs that are late and regurgitate their pleading. These will not persuade the mediator to be your client’s ally in the private sessions with the other side. The mediation brief should open with a brief overview paragraph that is pointed and notes your client’s interest in reaching a settlement. The brief should also describe the settlement discussions between the parties to date.

4. Brainstorm in advance.  Mediators are trained to explore settlement alternatives to the typical demands for cash payments. For example, they will often ask whether there are any prospects for the parties continuing in some type of relationship. Prepare your client for these questions or deal upfront with these issues in your mediation brief.

5. Opening session — don’t posture.  Nothing annoys mediators more than counsel who posture during the opening session to demonstrate to their clients that they know how to argue with and anger the opposition. There is also no need to repeat what is on your mediation brief: any good mediator has studied the briefs in advance. Use the opening session to demonstrate that you and your client are there to try to settle the dispute and briefly suggest how the obstacles to a settlement might be overcome. Where appropriate, open with an apology.

6. BATNA and avoiding surprises.  Most mediators will tell your clients that they should try to negotiate a settlement that is better than their BATNA: their Best Alternative To a Negotiated Agreement. This usually requires you and your client to review the legal costs of proceeding forward and the likely recoverable costs in the event of a trial and appeal. Your client should not hear this for the first time at the mediation. A client’s appreciation of the actual versus recoverable legal costs is often a significant factor in whether settlement is achieved.

7. Ending the settlement dance.  Many mediations reach the settlement dance or horse-trade stage where a troubling gap to settlement remains despite the exchange of multiple offers. At this point you need some tools to break the deadlock. Your mediator should provide you with alternatives but, if not, you should propose them. For example, consider moving toward the resolution of less important settlement terms; if these smaller nuts are cracked, it can sometimes create momentum to resolve the bigger issues. Consider a meeting of the lawyers or of the clients without counsel (with or without the mediator) to have a final frank discussion about bridging the gap. Consider having an expedited, binding arbitration of the final remaining legal or damages issue. In short, be creative.

8. Unreasonable expectations. Every lawyer has had clients with unreasonable expectations. Despite your cautions about the risks and costs of litigation, the clients hear only what they want to. Where your clients’ demands are unreasonable, you should let your mediator know that you need help. Take the mediator aside, explain your predicament and ask for the mediator’s assistance to moderate your clients’ expectations.

9. Ask for guidance. Mediators gather a lot of information in the private caucus sessions about the other side’s key terms, authority limits, possible
bottom line, financial condition and structuring alternatives. As a result, you should ask your mediator for guidance on ideal ways to formulate and present your offers.

10. Minutes — take the pen.  Often there are no volunteers to draft the minutes of settlement. Consider taking the pen and producing the first draft of the minutes. This allows you to discuss the settlement details with your client as you draft and avoids the surprises that sometimes arise when you are presented with a draft from the other side.

Randy Pepper is a mediator and arbitrator with ADR Chambers, chair of the Marketing and Communications Committee of the Toronto Commercial Arbitration Society and a barrister in Toronto who acts on a variety of international and domestic mediations and arbitrations.

Click here to read how your facebook or twitter account could be used in your divorce.

Click here to read page 2 on how your facebook or twitter account could be used in your divorce. 

Click here to review page 1 of the study documents for the growing challenges for the justice system.

Click here to review page 2 of the study documents for the growing challenges for the justice system.

By Maryellen Symons

The Supreme Court’s decision in Kerr v. Baranow, [2011] SCC 10, released on February 18, 2011, presents a fresh and (somewhat) encouraging analysis of how monetary damages should be measured when a spouse successfully claims damages because the other spouse has been unjustly enriched by the claimant’s uncompensated contributions. The Court decided appeals from British Columbia and Ontario: Kerr v. Baranow, 2009 BCCA 111, and Vanasse v. Seguin, 2009 ONCA 595. The unanimous decision of a seven-judge panel was written by Mr. Justice Cromwell.1

Both cases arose from the breakdown of common law relationships. Common law spouses are the main beneficiaries of the court’s re-evaluation of the approaches in this area; as Cromwell J. notes, unmarried spouses in most Canadian common law jurisdictions do not enjoy the benefit of the comprehensive matrimonial property statutes available to married spouses. They must rely on judge-made law. It has evolved considerably since the earliest cases, but some issues have continued to create controversy.

In Kerr v. Baranow, the parties separated after a 25-year common law relationship, during most of which they both worked in paid employment and contributed to each other’s mutual welfare. The trial judge awarded Ms. Kerr one third of the value of the couple’s residence, on resulting trust and unjust enrichment grounds, and awarded spousal support. He did not address Mr. Baranow’s unjust enrichment counterclaim, based on the care he gave Ms. Kerr after she suffered a stroke. The B.C. Court of Appeal set aside the trial judge’s resulting trust and unjust enrichment conclusions.

In Vanasse v. Seguin, the parties were together for 12 years and had two children. Mr. Seguin agreed that he had been unjustly enriched by Ms. Vanasse’s contributions. The issue was how her compensation should be measured. The trial judge “valued the extent of the enrichment by determining what proportion of Mr. Seguin’s increased wealth was due to Ms. Vanasse’s efforts as an equal contributor to the family venture” (see paragraph 5 of the decision). The Court of Appeal allowed Mr. Seguin’s appeal, set aside the trial judge’s finding, and ordered a new trial, directing that “the proper approach to valuation was to place a monetary value on the services provided by Ms. Vanasse to the family, taking due account of Mr. Seguin’s own contributions by way of set-off.... In short, the Court of Appeal held that Ms. Vanasse should be treated as an unpaid employee, not a co-venturer” (paragraph 5).
The Supreme Court disagreed with this approach. To articulate the correct approach, they had to deal with several issues.

First, the “common intention” resulting trust that featured in the earlier case law, and still emerges from time to time, has had its day and no longer has a useful role to play. (This does not apply to other aspects of the law of resulting trusts.) Unjust enrichment is a better vehicle to address claims of inequitable distribution of assets when a domestic relationship breaks down.

Next, Cromwell J. outlines three areas of the law of unjust enrichment that require clarification: the approach to the assessment of a monetary award for a successful unjust enrichment claim, how and where to address the mutual benefit problem, and the role of the parties’ reasonable or legitimate expectations.
On the first issue, the Court rejects the widespread view that if a person claiming unjust enrichment cannot show a sufficiently direct contribution to the acquisition, preservation, maintenance or improvement of specific property, the only available remedy is a monetary award assessed on a fee-for-service basis. Restricting the monetary remedy to fee-for-service is inappropriate for several reasons.

In cases where the contributions of both parties over time have resulted in an accumulation of wealth — where there has been a “joint family venture” — unjust enrichment occurs when the breakdown of the relationship leaves one party with a disproportionate share of the assets produced by their joint efforts. There may not be a sufficient link between the contributions of the disadvantaged party and a specific property to make a proprietary remedy appropriate. Yet there may be a link between the joint efforts of the parties and the accumulation of wealth. This, the Court says, is not a new idea; it can be seen in the dissenting judgment of Laskin J. in Murdoch v. Murdoch, [1975] 1 S.C.R. 423; in Rathwell v. Rathwell, [1978] 2 S.C.R. 436; in Pettkus v. Becker, [1980] 2 S.C.R. 834; and in Peter v. Beblow, [1993] 1 S.C.R. 980, which does not mandate the “value received” or fee-for-service or quantum meruit approach as the only alternative to a proprietary remedy for unjust enrichment.

Cohabiting couples, Cromwell J. tells us, are not a homogeneous group and not every cohabiting couple has been engaged in a joint family venture. The hallmarks of a joint venture include (in a non-exhaustive list) mutual effort, economic integration, actual intent and priority of the family. When a joint family venture is present, remedial flexibility and respect for people’s actual experience point to a remedy that reflects the contributions of the spouse who would otherwise receive a disproportionately small share of the jointly acquired wealth.

Lest we get too excited about these developments in the unjust enrichment analysis, we must note that there is no presumption (as there is in matrimonial property statutes) of equal sharing. Each case is fact-specific, and the shares may be unequal. Indeed, not every breakdown of a common law relationship will necessarily involve an unjust enrichment claim, and not every such claim will succeed.

In Kerr v. Baranow, when mutual benefits should be considered was an issue; Mr. Baranow claimed that his care after her stroke had benefitted Ms. Kerr. Cromwell J. suggests that mutual benefits are most appropriately considered at the defence and remedy stage, but may be considered at the juristic reason stage of the unjust enrichment analysis, to the extent that the provision of reciprocal benefits provides evidence of a juristic reason (or the lack of one) for the enrichment.

Finally, the parties’ reasonable expectations have a role to play in those cases where there is no juristic reason for the enrichment within the existing categories (such as gift or legal obligation) and the defendant must show that there is a juristic reason for retaining the benefit which falls outside those categories.

Application to the Vanasse and Kerr appeals

In Vanasse v. Seguin, the Supreme Court allowed Ms. Vanasse’s appeal and restored the trial judge’s order. The trial judge found, in effect if not in so many words, that there was a joint family venture. Her findings of fact fit conveniently under the features of a joint family venture that Cromwell J. identified. There was a link between Ms. Vanasse’s contribution to the joint venture and the family’s considerable accumulation of wealth. There was no reason for Mr. Seguin to keep a disproportionately large share of it. The trial judge’s approach to calculating the monetary award Ms. Vanasse should receive was reasonable.
Kerr v. Baranow presented a more difficult problem. The trial judge made errors in reaching his findings on resulting trust and constructive trust; and he failed to consider Mr. Baranow’s counterclaim, based on his care of Ms. Kerr after she suffered a stroke. Yet the Court of Appeal went too far in simply dismissing Ms. Kerr’s claims. The Supreme Court returned her unjust enrichment claim for trial and affirmed the Court of Appeal’s order for a trial of Mr. Baranow’s counterclaims.

This decision of the Supreme Court does not overturn or undercut Walsh v. Bona. It does not establish a presumption that common law couples share assets equally on the breakdown of a relationship. It does not establish a presumption of unjust enrichment. It does two things: it clarifies the law of unjust enrichment, and it challenges the treatment of spouses (usually women) who make unjust enrichment claims as “unpaid employees”. The law still makes a distinction between married and non-married spouses (no matter how long or how interdependent the relationship), but this case recognizes that the claimant spouse may be a co-venturer who is entitled to a share of jointly acquired wealth, not merely to the hourly wages of hired help.
The Court’s reassessment and clarification of the approach to unjust enrichment are relevant to common law spouses, to married spouses and to unjust enrichment claimants generally. Kerr v. Baranow is a must-read decision.

Maryellen Symons is a research lawyer in Toronto and a former Ontario liaison on the WLF Executive. This article was previously published in Voices, the newsletter of the Ontario WLF/Feminist Legal Analysis Section of the Ontario Bar Association.

Nicholson’s new parliamentary secretaries says he suspects the Harper government will roll out Divorce Act reforms in its new majority mandate.  “I really don’t know at this point — but it wouldn’t at all surprise me,” commercial litigator and New Brunswick Conservative MP Robert Goguen told The Lawyers Weekly as he was winding up his Moncton law practice. “It’d be conjecture,” Goguen noted, “but I suspect there will be some. I’ve seen some of the stuff and I know there is a need for it.”

Click here for the full article

Cost of a divorce can devastate your finances. Choosing the right avenue is key to keeping your assets in your pocket. 

Find out if your situation is the right fit for mediation.

There are two paths you can choose when faced with divorce. Inform yourself of all pros and cons. 

By being informed of your alternatives, you can save yourself and your children the pain that the traditional system can cause.

Why is BC Government encouraging separated and divorced couples to settle disputes outside the courtroom?

Find out what a Lawyer in BC is saying about long distance mediation through technologies such as: phones, teleconferencing, video conferencing, e-mail, text messaging, custom text based applications and web conferencing.  Click here

Click here to read what Ontario Chief Justice, Warren Winkler, thinks about our present Family Law Court System

Click here to read a Globe and Mail article that takes us through some family-court idiosyncrasies across the Canada