Family Law: Privacy, Tact and Discretion

You may have spent the last 25-30 years raising your family and working towards being financially secure when you retire. Life was really, really busy for a very long time. Sometimes, people in a long-term marriage lose touch with each other and live collegially, so to speak, in a house together more as companions. As you enter a new chapter of life, you may realize that you and your spouse/partner now want different things. It happens. We’re all human.

While obtaining a divorce is now relatively straightforward, applying property and support laws can get complicated. Separating a family is difficult, particularly when children (even if they are adults) are involved. There are legal  obligations and entitlements, and a plan that reflects and respects a family’s unique dynamic needs to be developed.

That situation is especially more complicated for high net-worth individuals. They have significant wealth and assets to consider, and determining who gets what can get very complex. How will the property be divided? What happens to the retirement fund? How are the wills, trusts and estate beneficiaries going to be affected? An added stressor for anyone who is in the public eye professionally (e.g., C-suite executives) is that they usually want to shield their private lives from any legal issues they may be facing.

Joanne Stewart, a family lawyer practicing for the last 40 years at Lerners LLP in Toronto, shares her insight regarding the importance of advocating for private resolutions as she and her team recognize the desire for discretion many of her clients express. While she and her clients navigate the public arena of the court system when necessary, she is adept at orchestrating confidential resolutions to shield families from unwanted publicity.

As Stewart says about her approach when dealing with a client at this level, “I have to get in and get out.”

The law is not black and white, especially regarding the matrimonial home. It can vary by case, net worth, or provincial laws. So, how can it be divided up fairly?

“It can be a long answer,” says Stewart. “Family law is like a puzzle with 10,000 pieces. We try to get ALL the pieces in the puzzle to fit.”

As Stewart explains, “By way of example, if Jack owned the house and ended up worth $10 million and his former spouse Jill worth $100,000, Jill would probably make a claim in equity against the house saying things like: ‘I did a lot of work there. I cleaned it up. I renovated. I laid the carpet. I had the pool put in and paid for it. I had the deck built and paid for it. You owe me $5 million.’”

Stewart advises people to look ahead and try to think about what lifestyle and assets they’ll have in 20-30 years, as many can live decades after retirement.

“To avoid a big fight later, in the future, I try to think of the details, not only on my own but with our client, because everybody’s individual. We do our very best to arrange things properly and make solid agreements that are binding and long-lasting.

“What you don’t want to do is make an agreement, think you have a deal, and then end up in court and in a fight later when you’re older and feeling less powerful than you might have when you were 45,” she adds.

Is it common for one of the spouses involved to retain the best family lawyers before requesting the separation to prepare for separation and prevent the other spouse from retaining that lawyer(s), who would then be in a conflict of interest? Would the spouse be that organized and bitter?

“Yes, that goes on quite a bit,” says Stewart. “The other thing many people do — more so men than women if there is a traditional power dynamic — is meet the lawyer three to five years before an anticipated separation and say, ‘I want to separate but not lose a lot of money. What’s my best plan?’

“A plan can be put in place to mitigate the damage of the separation, and that may include dealing with property in certain ways, setting up trusts, moving to a jurisdiction where the other spouse has no real entitlement to anything … all kinds of things happen.

“It goes on a lot with high net-worth people. However, most people in the world would say, ‘What are you talking about?’ Planning like this wouldn’t be even on their horizon,” explains Stewart.

“But those people who do these things go to lawyers to disqualify them for their spouse, causing the lawyer to be conflicted out of representing the spouse. Based on our experience as lawyers, we sniff these situations out. You can tell exactly what they’re doing so you don’t meet them; you say no.”

Often, one of the spouses is the breadwinner, and the other cannot afford legal help.

Stewart has a straight answer: “That’s a problem too, and that is called ‘unfair.’ And it goes on all the time.

“When I started in the ‘80s, there was legal aid for family law so people could draw on that, but that legal aid support fluctuates, depending on government budgets.

“Often, the person without money is in a tough spot unless they can borrow from friends or family, access credit or get a lawyer to carry the account. Carrying the unpaid account can add up to a lot of money, and the lawyer may not get paid … but if somebody came in the door needing help, we might do it anyway,” she adds.

Stewart has some parting advice when hiring a lawyer: “Know who your lawyer is and their view of integrity and values because you need to get along with them. Do the research as to who you’re hiring and who you will deal with. It matters.”

Stewart is one of less than 25 family law Specialists in Toronto, Certified by the Law Society of Ontario. She is routinely recognized in Best Lawyers, a Canada-wide peer-rated group, and a long-term fellow of the International Academy of Family Lawyers, a worldwide group. Working with her various resources, Stewart acts for people who may be anywhere in the world and need diverse legal, investment, business, accounting and emotional help.

Contact Joanne Stewart at [email protected]

At Lerners, we understand the delicate nature of domestic and family-related legal decisions and appreciate the emotional toll they can have on those involved. Our Southwestern Ontario and Toronto teams will work tirelessly to protect your interests and achieve the best possible outcome to get the closure you deserve. With a successful track record that includes some of Canada’s most complex family law cases, we dedicate ourselves to achieving results and helping you move forward with your life.