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Ensuring children’s privacy, protecting financial details and keeping sensitive personal issues out of public eye top of mind
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By Laurie Pawlitza and Adam N. Black
Prime Minister Justin Trudeau’s social media announcement about the end of his 18-year marriage made news worldwide this week. For most people going through a divorce, the stakes are high and the process is difficult, but a divorce attracting public attention is even more daunting. Ensuring children’s privacy, protecting financial information and keeping sensitive personal issues out of the public eye are often top-of-mind in a celebrity divorce, and no doubt have been for the Trudeaus. Here are some of the major do’s and don’ts a separated couple should keep in mind in a high-profile divorce.Â
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1. Think of the kids firstÂ
No matter how old children are, they will be affected by a separation. It’s the parents’ responsibility to minimize the damage. The Trudeaus have announced that their children will remain in Rideau Cottage with the prime minister, and Sophie Grégoire Trudeau will move out, but will return when the prime minister is away. Given the PM’s schedule, it is likely that Grégoire Trudeau will be at Rideau Cottage a good deal. This concept — where parents move in and out of the home but the children remain in one place — is referred to as nesting. It is usually a short-term arrangement as, in many circumstances, civility tends to disintegrate when spouses re-partner. It is, however, a good temporary solution which allows the children to remain in their home during a time of transition. Â
2. Choose the right way to resolve your disputeÂ
Privacy is usually important in a high-stakes divorce and family law proceedings are public. If a separating couple reaches an agreement out of court, they are more likely to control the resolution and any messaging that flows from it. If direct negotiations are unsuccessful, choosing mediation and arbitration are confidential alternatives in which separated spouses hire a neutral third party, often a lawyer, to resolve the dispute. A mediator facilitates a settlement while an arbitrator can make a binding decision about the dispute, much like a judge. Both parties must agree to participate in the process. The agreement usually includes a confidentiality clause, ensuring the process and information exchanged within it remain confidential. Â
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If mediation fails or one spouse refuses to arbitrate, the court is the only option left. While the proceedings are public, a couple may ask the judge to use initials instead of the parties’ names. Alternatively, a request can be made to seal the court file. However, because courts are intended to be transparent, the threshold for a sealing order is high. Absent a serious risk to the administration of justice, judges are reluctant to make a sealing order. Â
3. Don’t withhold financial disclosureÂ
Resolving a family law dispute requires the exchange of full and frank financial disclosure by both parties. For celebrities, business leaders and other high-profile couples, the financial stakes can be enormous. For example, Mackenzie Bezos, the former wife of Amazon.com Inc. founder Jeff Bezos, reportedly received more than US$38 billion in stock in a divorce settlement in 2019.Â
Those kinds of figures lead some to attempt to hide assets, but if a party unreasonably withholds relevant financial information, court proceedings will almost certainly follow. Given the judicial intolerance towards refusing to provide disclosure, the withholding party will highly likely be ordered to provide it and is often ordered by the judge to pay costs.Â
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Where the provision of financial disclosure in court creates a risk for the person being asked to provide it (such as sensitive business information becoming available to competitors) separated spouses should consider a non-disclosure agreement prior to providing the disclosure.Â
4. Don’t unilaterally change the financial arrangementsÂ
On the heels of a separation, spouses should be cautious in taking any steps that will disrupt the financial status quo. Leaving one spouse without access to financial resources will almost certainly land the couple in court on an urgent basis. If a spouse is concerned about funds being depleted after separation, quick steps should be taken with the assistance of a lawyer to establish proper support arrangements. Until those are in place, spouses should track spending and access to funds in order to account for it in a final resolution. Â
5. Settlements can be more creative than the court Â
Children’s issues and income changes do not end with a separation agreement. High-profile separated couples need to think about future changes and plan for them in a way that ensures ongoing privacy and confidentiality. For example, as the law requires child support to be reviewed annually, couples may wish to consider locking into a dispute resolution model such as mediation and/or arbitration for all future disputes.Â
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6. Don’t rush to the finish lineÂ
A separated spouse should never rush into a settlement in order to avoid being in the spotlight. Resolving the issues that arise from separation is a thoughtful, time-consuming and complex exercise. Having all the relevant information and understanding rights and obligations in the context of the family’s individual circumstances is integral to achieving the best result. Â
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The way the Trudeaus handled the announcement of their separation suggests that they are heeding good legal advice. Â Â
Laurie Pawlitza is a senior partner and Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto.
lpawlitza@torkinmanes.com
ablack@torkinmanes.com
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