Law Times

February 11, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 11, 2019 11 BY DALE SMITH For Law Times D ivorces that happen later in life can have unique le- gal challenges, such as the proximity to retirement, life insurance and whether or not grown children become partici- pants in the proceedings. Family lawyers say these "grey" divorces can have differ- ent challenges than for those who get divorced younger in life. Georgina Carson, a partner at MacDonald & Partners LLP in Toronto, says that, when cou- ples are older, the future is often more predictable, which can make for an easier separation. "If they're at or near retire- ment, we know what the future holds more or less," says Carson. "Parties can really meet that goal of effecting as clean a break as possible and closure, but if someone's 62 [years old] and they're working at a firm with a mandatory retirement of 65, you can really plan around that." Carson says this certainty can mean that finances are easier to separate and for it to be done all at once, rather than face a review or variation by the courts in the future. "It really is dividing a pot," she says. Carson says that most grey divorces deal with situations where children are grown up, which eliminates custody and access issues — one of the most intractable areas of family law. "Parties can also really effect a clean break, because not only do you have to figure out a par- enting plan for younger, separat- ing parties, but they have to co- parent," says Carson. "When there are adult chil- dren, they may need to talk to each other about weddings and grandchildren, but it really is much easier to effect a clean break and have some real clo- sure." Carson notes that added dif- ficulties in older divorces are health issues, particularly if one partner is starting to show signs of dementia, even though that person may not necessarily ex- hibit this to the point of impair- ment or to require a litigation guardian. "It can be very difficult as law- yers, because we're not necessar- ily trained to assess these things, to make a judgment call whether a proper assessment should be done — and whether or not a client will be co-operative with that — and whether or not there's someone who is appropriate to be the litigation guardian," says Carson. Potential impairment can be further complicated when there may be unscrupulous adult chil- dren who become involved in their parents' separation or di- vorce, says Carson. "Lawyers need to be extreme- ly mindful and vigilant when it comes to knowing who their clients are and from whom they can take instructions," says Car- son. "Sometimes, adult children feel that they have a personal stake and they attempt to con- trol the outcome." David Frenkel, a lawyer with Gelman & Associates Family Law Lawyers in Toronto, says that, in younger divorces, in- definite spousal support agree- ments change when retirement comes. Because retirement is much sooner or has already happened in grey divorces, that requires a change in these support agree- ments. "The extra challenge [for law- yers] is crafting and drafting an agreement that takes that into account," says Frenkel. Frenkel says medical benefits of spouses are often a consid- eration in these cases because many insurance providers will have provisions to cover a for- mer spouse as long as they are not divorced. "When you're drawing up your agreement, you should be cognizant of that [stipulation]," says Frenkel. "At that point, you can do one of two things — that the recipi- ent has to find their own medi- cal coverage and pay from their pocket for the support they're getting or if there is a provision that they'll get a top-up from the payor." Another consideration for lawyers to pay particular atten- tion to is life insurance when it comes to divorce. In November, the Supreme Court of Canada ruled in Moore v. Sweet that a woman who continued to pay insurance premiums on her late husband's insurance was able to maintain the beneficiary designation, as per their separation agreement, and was entitled to the $250,000 payout. The court recognized this was despite the fact that her late husband had subsequently des- ignated his new common law spouse as the irrevocable ben- eficiary without his first wife's knowledge. "People have to be really careful about following up on designations and turning their minds to [future] security," says Carson. "As family law lawyers, we're often thinking about the here and now and not thinking so much about the future and new families and the fact that these designations need to be followed up on." Carson says the fact that Moore went to the Supreme Court of Canada is a sign of how important the issue is. Frenkel says a spousal support order should also be secured against life insurance in order to main- tain the payments in the event the payor dies. Georgina Carson says most 'grey' divorces deal with situations where children are grown up, which eliminates custody and access issues. Grey divorces pose legal challenges FOCUS See Cultural, page 12 TF: 1.888.223.0448 T: 416.868.3100 TRUST WELL PLACED L. CRAIG BROWN DARCY R. MERKUR STEPHEN M. BIRMAN RICHARD C. HALPERN ALEKS MLADENOVIC DEANNA S. GILBERT ROBERT M. BEN CARR HATCH LEONARD H. KUNKA DAVID F. MACDONALD IAN W. FURLONG JOHN-PAUL ZENI SLOAN H. MANDEL KATE CAHILL LUCY G. JACKSON MICHAEL L. BENNETT STACEY L. STEVENS Since 1936, Thomson Rogers has built a strong and trusting relationship with lawyers across Ontario. We welcome the opportunity to speak or meet with you about potential referrals. For more information about our Lawyer Referral Program, visit: Untitled-4 1 2019-02-05 3:10 PM

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