Family Conferences: The Antidote to Family Cottage Conflict

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It is one of the “dirty secrets” of the short Canadian summer that the family cottage can be a source of hard feelings, stress, and conflict. I once met a woman who told me that drama over her ex-husband’s family cottage was a big factor in their eventual divorce. While this is an extreme outcome, I wonder how many similar stories are out there?

Whether the property in question is modest or luxurious, rustic or well-equipped, issues such as who gets to use it and when can drive a wedge between family members. This is because a cottage is a valued piece of real estate (with all of the responsibilities this entails), but at the same time it is more than a real estate asset. It is a repository of childhood memories and family traditions. Discussions of practical issues (when to open and close the cottage, ongoing maintenance, even changes to the décor) arouse strong emotions when they are mixed up with family dynamics and alternative versions of a common history.

A family conference is one way to put to rest ongoing conflict over a shared vacation property. Everyone who has some kind of claim on the cottage sits down together and works out a shared plan. Issues to be resolved might include scheduling, how expenses are covered, cleaning and landscaping, will the cottage be rented to non-family members, and if so, who will manage that. You might also talk about basic expectations around tidiness and supplies.

Follow these guidelines to make the most of your family conference:

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Be clear on your objectives. Are you making decisions for this season only, or coming up with a plan for the next five years?

Draft an agenda. What issues are on the table, and in what order are you going to go through them?

Make a commitment to hearing one another out. Everyone should have the opportunity to speak, and everyone should feel like their viewpoint has been heard.

Use video if someone can’t be there in person. Skype, Zoom, and Google Hangouts are great ways of meeting together when you can’t be physically in the same room.

Have the full information on hand. As much as you can, discuss real numbers and timelines. Bring the documents related to insurance, past maintenance costs, etc. If changes to the ownership structure are on the table, have someone meet with an accountant or financial planner and report back to the group on tax and other implications. Avoid discussions around “possible” consequences.

Decide how you will decide. Are you aiming for unanimous agreement? Majority vote? Coin tosses for low-stakes decisions? Most people understand that they won’t get their way on every decision. But if it seems like decisions are constantly going against one person, that will likely be a barrier to long-term resolution.

Don’t restrict attendance. Sometimes people want to exclude spouses and partners from a family meeting. This is usually a bad idea. In most long-term relationships, people are making shared decisions and want their partner to be on board. If a partner is excluded, then he or she may not understand the reasons behind key decisions. You might think that everyone is in agreement, only to have someone go back on a decision after discussing with their partner.

Get it in writing. Memories are faulty, and it is easy to overlook important details if they aren’t written down.

Consider working with a professional. Afraid that cousin John will dominate the meeting? Concerned that tensions are already high? Consider working with an experienced mediator or facilitator who will know how to manage difficult personalities and strong emotions.

Summer is short, and vacation time is precious. Don’t let conflict over a vacation property compromise your enjoyment.

About the images: First photo by Jennifer Aitkens from Guelph, Ontario, Canada – Green Shutters, CC BY 2.0, Link Second photo by Altius Architecture – Jonathan Savoie – https://www.flickr.com/photos/altiusarchitecture/6892803597/in/photostream, CC BY 2.0, Link

What is a “parenting plan”?

Getting Ready For A Hot Summer DayA “parenting plan” is a document that specifies how family time will be arranged, information will be shared, and responsibilities will be met in the aftermath of the parents’ separation.

In most families, there is a more-or-less regular “division of labour” with respect to looking after the children and getting them to their extra-curricular activities. For example, Mom handles swimming lessons and Dad does hockey practice, while they take turns going to parent-teacher interviews. There is also likely to be some standard way in which important decisions regarding the children are made. Maybe the parents make most decisions together, but one or the other does the research. Maybe Dad has strong views about athletic activity, so he tends to handle those types of decisions.

When parents divorce the sharing of responsibilities continues, but often things get a bit more complicated. Likely, the children will be spending time in two different households. How exactly will that work? Finances will be affected. There may not be enough extra money for the kids to take piano lessons and also to continue with tai kwon do. Choices will have to be made. Maybe one parent has stayed home and has had most of the responsibility for getting the kids to their after-school activities. If that parent plans on going back to work different arrangements may be necessary. Ideally, parents work together, perhaps with the help of a mediator, to negotiate the details of the plan.

How detailed should the plan be? On the principle that those who want to disagree will find something to disagree about, the greater the potential for conflict between the parents, the more detailed the plan should be. Some parents will be fine with a plan that says, “Billy will spend Tuesday evening and overnight with his father” and let the details sort themselves out. Other parents will need (or will simply prefer) to have a plan that states, “Billy’s father will pick him up from school on Tuesday afternoon and take him to hockey practice. Billy will sleep over at his father’s place, and his father will return him to school on Wednesday morning.”

There are many reasons to get a parenting plan in place – even a temporary one – as soon as possible after parents separate. Having a plan cuts down on uncertainly and on stress for everyone. Most importantly, having a plan provides security and stability for children. (And as most parents will tell you, they aren’t happy if their children are unhappy.) Children need to know that someone will be there to take them to hockey practice and ballet lessons even if mom and dad aren’t living together anymore. It is important to them that both parents continue to take an interest in their schooling and follow their progress. They also need to be reassured that they won’t lose touch with extended family members who have been important in their lives so far.

Another reason to negotiate a parenting plan is that it means decisions can be made calmly, in a considered manner, rather than “on the fly.” The more the details are spelled out and agreed upon beforehand, the less potential there is for conflict later on. And protecting children from having to witness parental conflict can only be good.

Could a Family Mediator Help You?

Many people are now aware that family mediation can help couples who are planning to separate or divorce. But the strong connection between “family mediation” and “divorce” is unfortunate. Mediators can do much more, and have a significant role to play in many different kinds of conflicts within families. Here is just a partial list of the sorts of situations where a mediator might help.

Discussions across generations. Even well-adjusted and loving families can have disagreements over difficult issues. A mediator can help adult siblings and their parents in coming to resolutions about the following:

• Eldercare decisions regarding residence, caretaking plans, medical treatment
• Estate planning and dispersal
• Succession planning in family businesses
• Shared use of vacation properties

Couples’ Concerns. It is regrettable that few people know about the role that mediation can play in helping couples stay together and work through their differences. Here are just a few areas where mediation can help couples improve communication and strengthen their relationships.

• Cohabitation agreements. (See my earlier posting on these.)
• Marital agreements.
• Differences in parenting styles
• Persistent disagreement and conflict – over financial decisions, life priorities, children’s education and religious upbringing, etc.

Separation and Divorce. Divorce and family breakdown are extremely stressful life events. Taking a non-adversarial, collaborative approach to resolving disputes can help reduce stress levels for everyone involved. A mediator can help with any or all of the following:

• Decisions about children’s basic living arrangements and schedule
• Decisions about holidays and vacations
• Decisions about children’s education and extra-curricular activities
• Financial issues, including child support and spousal support
• Decisions about how new partners and step-parents will fit into family life

Depending on your family and on the problem you’re facing, family mediation might be a good approach. The only way to know is to contact a mediator in your area and discuss your concern.

Grandparents, Children and Divorce

Grandparents for Grandchildren

Among the current proposed changes to family law in England and Wales is a plan to grant access rights to grandparents in the case of family breakdown. (Here is an article about the proposed changes.) In Ontario, a private member’s bill (no. 33) with a similar aim is currently being reviewed by the standing committee on social policy.

Grandparents often play important roles in the lives of their grandchildren. They help out with childcare, provide a sympathetic ear, and share their life experience. There is good evidence that children benefit from having a close relationship with their grandparents. When a child’s parents have separated, the grandparents’ role is all the more crucial. A grandparent’s home can be a place of peace and stability. This is especially true if the parents are angry or upset with one another, or there is a lot of upheaval in a child’s life.

Sadly, many grandparents have reported that they have found it difficult to remain part of their grandchildren’s lives after the children’s parents split up. Paternal grandparents are especially likely to report feeling shut out. While there is support in both England and Ontario for improved legal rights for grandparents to see their grandchildren, it is easy to see that changing the current laws cannot be the whole solution. For one thing, many seniors are on restricted incomes and may not have the means to hire lawyers and have their day in court.

Why would a parent make a decision to restrict the time that their children can spend with their grandparents? A mother might feel that her former in-laws never accepted her or never liked her. She might feel that they contributed to the breakdown of her marriage. A father might fear that his ex-wife’s parents are going to put him down in front of their children. If one of the parents does not share the same religious or cultural background as his or her in-laws, that parent might be concerned that the grandparents will not respect these different cultural traditions, and this in turn might be confusing for the children.

I predict that many conflicts between parents and grandparents over the right to spend time with their grandchildren will end up in mediation. A mediator can talk to all of the parties involved and work to keep everyone focused on the best interests of the children. Children do benefit from having their grandparents in their lives, but it is also important that grandparents are respectful of both of the children’s parents. One of the greatest gifts that grandparents can give to their grandchildren is a stable and peaceful setting where they can get away from their parents’ conflicts and problems. It might not always be easy for grandparents to set aside bad feelings about one or other of their grandchildren’s parents. But refusing to do so can only make a bad situation worse.

Cohabitation Agreements

Cohabitation

In my previous post, I mentioned a recent decision by the Supreme Court of Canada that is likely to change the way that the courts deal with support and property conflicts between unmarried partners. There’s speculation among lawyers that the decision will lead to an increase in cohabitation agreements. So I thought it would be useful to say something about them here.

A “cohabitation agreement” is a contract between unmarried partners who live together, and it can be signed before the couple move in together or after. It usually specifies things like the rights and obligations of each party during the cohabitation, and what will happen if the relationship ends. For example, who will own property acquired during the relationship? Will one partner be obliged to support the other, and for how long? Who will move out of the shared residence, and how soon after the relationship ends should that person be expected to find a new home? For a cohabitation agreement to be legally binding the parties must sign it in front of a witness (who also signs); each must make a full and frank financial disclosure; and the parties must sign voluntarily.

There are good reasons for couples to work out a cohabitation agreement before moving in together. Working together on a cohabitation agreement can give each person some idea of how the other deals with conflict, and if they are able to have together what mediators like to call “difficult conversations.” For example, many couples avoid talking about money and realize only too late that they have different values around it and different spending habits. Having an open and honest discussion about each other’s financial situation and financial goals early in the relationship can help avoid conflict and misunderstanding later on. Another good reason to have a cohabitation agreement is that, if the relationship does break down, a legally binding agreement can provide some predictability about property rights, and it can help protect against unnecessary cost and litigation.

But do you really need a cohabitation agreement? A lawyer who specializes in family law can advise you about your particular situation. Likely, the answer depends on how much property you own, and how complicated your life is. If the only discussions you and your partner need to have are over who unloads the dishwasher and who pays the extra cable charges, probably a formal agreement isn’t necessary. But if one or the other owns a home or other substantial assets, or has children, a cohabitation agreement might be a good idea. Another factor to consider is whether the shared living arrangement is meant to be temporary or long-term. If the arrangement is meant to be long-term and indeed to take the place of a marriage, then having a formal agreement is probably advisable. I should also note that, ordinarily, a cohabitation agreement remains valid if the couple marries.

If you do decide that you and your partner would benefit from having a cohabitation agreement, then do it properly. Meet with a mediator if you find it difficult to discuss money or other sensitive subjects. Most importantly, each person signing the agreement needs independent legal advice. That means that both you and your partner should go over the agreement with your own lawyer. It is better to spend the money at the outset to make sure that you have a durable agreement, than to find out later (and at much greater expense) that your agreement won’t hold up in court.

Marriage, Cohabitation, and the Law

Two parts, one heart.

When a couple moves in together, along with good wishes, they are likely to receive misinformed advice. Contrary to what many seem to believe, there are important legal differences between living together and being married. Just what these differences amount to depends on where the couple lives. (I will avoid using the term “common law marriage.” Not all jurisdictions recognize common law marriage, so using the term where it may not be appropriate is misleading.)

Below I’ve outlined some of the main differences between married and cohabitating couples in Ontario. The key difference is that married couples are treated as an economic unit, while cohabitating couples are not.

Primary Residence: When a married couples divorces after three years or more, both have an equal claim to live in the family home. This is regardless of whose name the property is in. Cohabitating partners do not automatically have this right.

Other Property: Unless they have previously agreed to do otherwise, married couples who divorce share the value of the property acquired during the marriage, as well as any increase in the value of the property they brought into the marriage. For example, Jim has owned a vacation cottage since before he married. If it goes up in value by $20,000 while he is married to Jane, then Jane is legally entitled to $10,000 upon divorce. If Jim and Jane were cohabitating, she would not be entitled to any increase in the value of the cottage. Similarly, cohabitating partners do not share any property that either acquires during the time of cohabitating. If Jane buys an artwork while living with Jim, she does not have to share it with him if their relationship dissolves. If they were married, Jim would be entitled to half of the value of the artwork. But note! Even if they are not married, if Jane contributes financially to the upkeep of the cottage, or Jim contributes some funds to purchase the artwork, the situation may be different.

Child Support: Children have the right to a relationship with both of their parents, and children have a right to be financially supported by their parents. This is true whether their parents are married or not. In some cases, the courts have ruled that if a cohabitating person has treated a partner’s child as his or her own, the child may be entitled to support from that partner.

Spousal Support: This is probably the trickiest area of all. Both married and cohabitating partners who break up may be entitled to support. A recent decision by the Supreme Court of Canada has set out a new framework for resolving property and support disagreements between formerly cohabitating partners. The case in question centered on a woman who moved out of the province to be with her partner and left a job to raise their children. Although the couple was not married, the court decide to treat their economic activities as a “joint family venture.” She was found to be entitled to half the increase in value of the couple’s assets, which amounted to about $1.5 million.

Inheritance: If a married person dies without a will, the surviving spouse is ordinarily entitled to part of the estate. If the couple is not married, the surviving partner does not have an automatic claim on his or her partner’s estate. If the surviving partner has helped pay for property that is in the deceased partner’s name, he or she may have to go to court to prove this before the estate can be settled.

I have taken most of this information from What You Should Know About Family Law in Ontario, a publication of the Attorney General’s Office. I am not a lawyer, and I don’t intend for this posting to be taken as legal advice! Family law is incredibly complicated. I’m told that even lawyers who work in other areas of the law find family law to be difficult. To find information relevant to your particular situation, you must consult a lawyer.

Next time: I’ll write about “cohabitation agreements” for unmarried couples.

Mandatory Marriage and Divorce Counseling?

Divorce rates in the state of Wyoming are among the highest in the U.S., and legislators there have come up with a strategy they hope will change that. If a proposed bill is passed, couples who plan to marry or divorce will have to attend three hours of counseling at their own expense. Couples who refuse counseling will have to wait a “cooling off” period of one year before being granted a license. Judges will have the right to waive the divorce counseling requirement in situations of domestic violence. The Catholic Church and some other religious institutions already insist that couples who plan to marry in the church receive premarital counseling. Yet while couples who didn’t want to go through such counseling have always had the possibility of opting for a civil ceremony, a marriage license is a requirement for any kind of ceremony. Is Wyoming’s proposed legislation an inspired response to a difficult social problem, or an unacceptable intrusion by the state into the private lives of its citizens?

Critics of the bill have been quick to argue that marriage is a personal decision, between two free individuals, and that “big government” has no place butting in. But this criticism won’t fly. Whether we like it or not, the state is already firmly involved in the institution of marriage. Marriage may be a personal matter, but it isn’t a private one. In choosing to marry (rather than co-habitate) individuals ask the state to recognize their union. Furthermore, many costs of a high divorce rate – in adult and child poverty, strain on the legal system, and higher bankruptcy rates – are borne by the state. The sponsor of the bill, Representative Ed Buchanan (Republican), says that it should help people understand the consequences of life-changing decisions. If internet family law forums are a valid indicator, many people contemplating marriage or divorce have very little understanding of their legal rights and obligations. Helping them to become more aware can only be a good thing.

Right now, there are very low barriers to marriage in Wyoming and its neighbouring states. Obtaining a marriage license will set you back $25 in Wyoming, $30 in Colorado, and a measly $15 in Nebraska. (For comparison, in Ontario a marriage license costs $130.) Making marriage and divorce more difficult might encourage some people to consider their decisions more thoughtfully, and this in turn might affect the divorce rate. Yet despite the good intentions of those who support the bill, I can see a few problems. First, there is nothing to stop couples in Wyoming from crossing the border to get married in another state. Second, I don’t know how strictly the counseling profession is regulated in Wyoming, and it isn’t clear what requirements marriage counselors would have to fulfill and what kind of expertise they would be expected to have. For example, would counseling by members of the clergy be acceptable? The issue of counselors’ training and expertise is all the more pressing when you consider that the issue of whether marriage counseling works at all is controversial. (Click here for an article from the New York Times Magazine that surveys some of the evidence for and against the effectiveness of couples counseling.)

If the bill passes, I hope that someone will do follow-up research. How many couples who receive mandatory counseling will revisit their decisions to either marry or divorce? Will the change have any effect on Wyoming’s divorce or marriage rate? Perhaps the idea will catch on, and mandatory counseling requirement for civil marriage will one day come to be seen as unremarkable as the requirement to undergo a blood test once was.