November 8, 2018

Confidentiality, creativity of mediation helpful in wealthy divorces

Confidentiality, creativity of mediation helpful in wealthy divorces

By Kirsten McMahon, Associate Editor |

In high-net-worth divorces where equalization and support can be more complex, parties may want to enter into more creative and flexible solutions through mediation, Toronto family lawyer Jennifer Samara Shuber tells

“It’s much easier to divide a property and deal with support in circumstances where somebody is a salaried employee and has a limited number of assets,” says Shuber, a lawyer with Beard Winter LLP. “You do the equalization calculation, you figure out what the spousal support entitlement and quantum is, and you look to the guidelines to calculate child support payments. It’s usually pretty straightforward.”

However, wealthy couples may own businesses, have supplementary retirement packages and bonus structures including shares, multiple properties or investment portfolios and require experts such as forensic accountants and valuators.

“All of these assets have to be factored in, and because lawyers are not trained to value these assets, parties have to retain more people in their matter in order to make sure that the end result is a fair one,” Shuber says.

By dealing with family law issues through mediation or arbitration, she says parties have the ability to be creative in coming to a resolution that makes sense for the couple, as opposed to a judge whose hands are tied with respect to how things are resolved.

“For example, a judge wouldn’t fix child support for children just starting high school since the law mandates a yearly review,” Shuber says. “In mediation, the parties may decide they don’t want to renegotiate and go through the process every year. Instead, they could agree on an income number, fix support for the next four or five years, and take another look at things when the child’s about to go to university.”

Another huge advantage of mediation is that the process is confidential.

“You’re not having your matter argued in a court where anybody in the public can gain access to that sensitive information,” she says, noting that some high-net-worth divorces have made headlines, including proceedings involving a frozen food heiress and Canada’s wealthiest Indigenous businessman.

“Keeping your financial information private is an important consideration in these types of cases,” Shuber adds.

She notes that mediation and arbitration is the better alternative in most cases — wealthy or not — because every family is different and has different needs, desires and interests.

“Who better to try to direct the resolution of the parties who are separating than the couples themselves as opposed to a judge?”

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