Law Times

PAGE 10 FOCUS November 8, 2010 • Law Times number of would-be reformers hope to curb family law dis- putes by stepping in before the marriage takes place. As a result, suggestions such as premarital legal education, testing before granting a mar- riage licence, and divorce in- surance are receiving serious consideration as solutions to marriage woes. It was the September release Should we take pre-emptive action before divorce happens? N BY JUDY VAN RHIJN For Law Times oting that intransi- gent problems call for creative solutions, a of results from the Law Com- mission of Ontario's consulta- tions for its Best Practices at Family Justice System Entry Points project that coined the phrase "family challenges." Dif- ferentiating this concept from family problems, it describes it as involving less serious issues that "tend to arise at happy times in family life." According to the report, "us- ing this expression helps people think about family formation — as opposed to breakdown — with challenges such as un- derstanding the consequences of living with or marrying MARMER PENNER INC. BUSINESS VALUATORS & LITIGATION ACCOUNTANTS BUSINESS VALUATION MATRIMONIAL & OTHER LITIGATION SUPPORT FORENSIC ACCOUNTING QUANTIFICATION OF DAMAGES SHAREHOLDER/PARTNERSHIP DISPUTES GOODWILL IMPAIRMENT TRANSFER PRICING 94 Cumberland Street, Suite 200 Toronto, Ontario M5R 1A3 Tel: (416) 961-5612 Fax: (416) 961-6158 2 Bloor Street West, Suite 2603 Toronto, Ontario M4W 3E2 Tel: (416) 961-5612 Fax: (416) 961-6158 Email our partners at: sranot@marmerpenner.com jdebresser@marmerpenner.com Email our partners at: sranot@marmerpenner.com jdebresser@marmerpenner.com someone. As the Ontario fam- ily law framework still focuses mainly on family breakdown, Ontarians do not typically understand these challenges as having legal dimensions worth addressing to prevent future problems." Patricia Hughes, executive director of the law commission, sheds light on the concept. "We wanted to distinguish between preplanning as op- posed to responding," she says. "We want to put people into the mindset that there could be challenges, so they need to think about how to organize the relationship and how to think ahead. Typically, people don't start thinking until they have a problem." Hughes notes the law com- mission wants to fi nd ways to attract attention to the idea that thinking ahead isn't a problem in itself. "It's diffi cult to say, 'We might have problems.' Life is so wonderful at the time. People think, 'We're going to be the two people who have nothing go wrong.' Of course, we know that life is not like that. Th is is like estate planning, except that is about a known event even if you don't know when it's going to happen." Th e Family Law Act provides a way to plan ahead for diffi - culties with pre-nuptial agree- ments, but the consultation revealed people rarely use them. "People tend not to do it in the normal course unless there's an enormous amount of money involved or they are at a diff er- ent stage of life, not starting out together," Hughes says. One course of action under armer_LT_June_10.indd 1 6/14/10 3:25:19 PM consideration is to identify the diff erent people couples turn to when they're thinking of get- ting married or living together, such as a local religious person or an interpreter they're in- volved with in some way. "One possibility is to give informa- tion to those people who are part of planning a family rela- tionship," says Hughes. "We could spread some brochures around that people could cast their eyes over." One of the suggestions from the Ontario Native Women's Association was for legal educa- tion and testing before issuing a marriage licence. "It would be ludicrous to allow individu- als free rein to drive without training and education and, following an accident, bring them to task for failing to meet the requirements of the laws of driving," its submission stated. "If the government and the courts are to be involved in the interpersonal relationships and family units of its citizens, then advance knowledge of the expectations if that relationship fails is imperative in order for both users and the system to op- erate properly and eff ectively." Although the idea seems amusing, the law commis- sion is taking it seriously. "It's not that novel an idea," Hughes points out. "Some people who get married in a church find there's a require- ment by their religious advis- er to meet, so there is already a certain kind of education We wanted to distinguish between preplanning as opposed to responding. We want to put people into the mindset that there could be challenges, so they need to think about how to organize the relationship and how to think ahead. Typically, people don't start thinking until they have a problem. from another point of view." Some advocates would like to see legal education as part of the normal process as a re- lationship progresses; however, the report noted widespread resistance to using early-in- tervention mechanisms, such as cohabitation agreements or counselling services. But mak- ing education mandatory is a way to overcome this resis- tance. "When you are already in the system, you can make things mandatory, such as man- datory parenting courses," says Hughes. "And hypothetically, you can attach mandatory re- quirements where people have to get a licence, but there is no question that we want people to want to do it." Another option to assist Evidence in Family Law Editor-in-Chief: Harold Niman Associate Editor: Anita Volikis And a team of prestigious practitioners, academics and accountants as contributors The first book to provide clarity in this complex area of law Find out from leading practitioners, academics and accountants how to best obtain, preserve and present evidence with Evidence in Family Law. This resource is structured to follow the evolution of a family law case through trial and appeal. It also examines specialized areas of family law looking at how to establish the proper evidentiary framework. Topics include: • • • • • • Order your copy today Looseleaf • $198 • Subscription updates invoiced as issued (1/yr) P/C 0243030000 ISSN 1920-9258 • • • • • • The Provincial Evidence Acts – Aaron Franks The Family Law Rules – Daryl Gelgoot, Deborah Zemans & Erin Chaiton-Murray Electronic Discovery – Melanie Kraft Children's Evidence – Alfred A. Mamo & Joanna E. R. Harris Expert Evidence, Assessments and Judicial Notice: Understanding the Family Context – Nicholas Bala Forensic Evidence: How to Obtain and Present It – & Alison Thomas Family Law Trials – Debbie Mackenzie, Andrew Freedman Gerald Sadvari & Stephen Grant Exclusionary Issues – George Karahotzitis, Patrick Schmidt & Joanna Harris Hearsay and Exceptions to the Hearsay Rule – Rollie Thompson Fresh Evidence and Setting Aside Orders – Anita Volikis & Harold Niman Child Protection Proceedings – Donna Wowk & John Schuman Charter Litigation – Martha McCarthy & Heather Hansen people to plan ahead for fu- ture family problems is divorce insurance, which has recently become available in the United States. Th ere, WedLock Di- vorce Insurance has a web site that boasts of a so-called di- vorce probability calculator as well as a cost-of-divorce calcu- lator. Commentary on divorce insurance suggests it could be a way to fund a pre-nuptial agreement or become part of it. Th ere's also a suggestion that worried family members could present it as a wedding gift to the couple, although it stipulates that only the bride or groom can be the benefi ciary, not the anxious relatives. In Canada, there are various schemes for legal costs insurance, but none covers family law costs. So far, DAS Canada is moni- toring demand for family law products through its legal help- line, which off ers advice on such matters but not representation. "We have not included family law costs as an explicit element because of our company policy not to pit two family members against each other," says Jas Bas- ra, DAS Canada's vice president and chief legal offi cer. "But never say never. If the market requires it, we would respond." For her part, Hughes isn't averse to the idea of divorce insurance. "It fi ts into the no- tion of increasing access to the legal system and fi nding a way to deal with costs," she says. But, of course, happy cou- canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT1108 www.lawtimesnews.com ples must fi rst get over the idea that making any provision for the worst could actually be a self-fulfi lling prophecy. LT

• Cover
• Revising Retainers
• Victim Impacts
• Focus On Family Law