This new concept originated in California. It is based on the idea that an increasing number of separating spouses want to settle their issues with the use of professionals in an inexpensive, amicable and respectful manner. Each spouse retains a family lawyer who is specially trained in collaborative family law. The spouses and their lawyers conduct a series of meetings to negotiate a resolution of the issues. The process is similar to mediation, however, in collaborative family law, if the negotiations are unsuccessful and litigation occurs, neither family lawyer can continue to represent the spouse in court and must withdraw from the case. This limitation is expected to encourage the spouses and their lawyers to use their best efforts in a productive, fair and focused manner to arrive at a resolution so that litigation is unnecessary. It is anticipated that spouses will be more committed and invested in the process to make the negotiations successful and arrive at a favourable outcome.

The Ontario Court of Appeal in the May 21, 2003 decision of Wylie v. Leclair did not think so. In that case, the parties lived together from 1985 to 2000 and had two children. After they separated, they agreed to a shared custody arrangement, with the children living with each parent on alternate weeks. A trial was held on the issues of support and division of property. Regarding the division of property, the trial judge found that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship. The trial judge awarded Ms. Leclair $150,000, and calculated this amount based on an equalization of net family property—a calculation that is used when married spouses separate by calculating each spouse’s assets and liabilities at the date of marriage and the date of separation.

Mr. Wylie appealed the trial judge’s decision to the Ontario Court of Appeal. The appellate court felt that the trial judge was wrong in attempting to provide an equalization of net family property for a common law couple.

When married spouses separate, it is necessary to equalize the parties’ net family property. However, this is not the law in common law relationships. The appellate court felt that the trial judge was attempting to adjust the law to provide for an equalization of net family property for common law spouses while there is no legal authority or presumption to do so.

The appellate court did consider the fact that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship, but also considered that Ms. Leclair lived rent-free for the duration of their 15-year relationship.

The appellate court reduced Ms. Leclair’s award to $70,000.

When a couple decides to part ways, it is often hardest on the children. They are forced to adjust to a new routine and a new or secondary home. To ease them into their new reality, parents need to create a warm, inviting and personalized space for the children so that they feel comfortable. Here are some tips on how to make a new or second dwelling feel like home:

1) Create a ‘Kids Zone’. Ensure there is a designated space for the children. Having their own bedroom will make them feel less like a guest and more like their home. If finances don’t permit, try to make the shared space special to them or designate a part of that space specifically for the children. Ensure the space has the functionality the children require such as sleep space, homework space, play space, space for friends, etc.

2) Involve the children in the process. No matter how old they are, have the children help decorate. If hiring a professional, have them consult with the children too. If they are older, set a budget and partner with the children in the design of their space. If they are younger, let them pick out their own pillows, bedding and decorations. If budget is a factor, create some DIY projects they can help with to save money. If they have a hand in creating their space, they will be more excited about it and it will be a more positive experience for them despite their parents’ separation.

3) Don’t be a hotel. Ensure they have a second set of key things so that they do not have to pack a suitcase every time they come over. They need to feel like it is their home, not a vacation. They may even want their room decorated the same way as their other home – which is fine. A second toothbrush and other toiletries, a good supply of clothing and pajamas, linens, toys, school/art supplies, etc. would be great to have. If they have a specific item they are attached to, try to purchase a second one. This way when they come over, they are coming home, rather than coming to visit.

4) No surprises. Keep a calendar visible that shows the children’s extra-curricular activities, when they will be with mom and dad, any family events they will participate in, etc. This way, they will feel more in control.

These tips will help ease children into their new environment and routine. If they are in a happy space, it will definitely help boost their mood and help them better cope with some of the feelings they may be having related to the separation. Even if it takes a small investment, it will be well worth it in the end.

By Erin Lazer, Owner of SpaceStyle Home Staging, Organizing and Design, www.SpaceStyle.ca, erin@spacestyle.ca