An ongoing frustration for family law lawyers as well as for
their clients is the high cost of family law litigation. In a presentation to
the Law Society of Upper Canada, Toronto family law counsel, Linda Silver Dranoff
summarized the causes of the high cost as:
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the amount of paper that must be prepared under current
family legislation and court rules;
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the extent of the court process that must be navigated
to comply with the rules;
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and the obstructionist manner in which some litigants instruct
their lawyers to conduct the litigation.
Our firm agrees with Linda. Our own experience is as follows
in this article. 
The Paper
Before 1978's Family Law Reform Act introduced the ideas that
the property of the separating spouses should be dealt with other than simply
letting the asset owner walk out of the marriage with it, the paper filed with
the court in family litigation consisted of either a statement of
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claim or a divorce petition stating what relief was wanted
by the initiating party, and why.
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a notice of motion asking for any temporary relief such
as interim custody and support;
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and an affidavit setting out the evidence including financial
situation supporting the claim for the interim relief.
In 1978 to implement the new rationale of the law that family
assets had to be shared and we needed to be far more detailed in financial disclosure
in support claims, we began to have to file formal financial statements as well.
When the current 1986 Family Law Act was introduced changing the property division
principals again, Ontario's required financial statement form grew to some 16
pages in thickness, and required not only a statement of what assets and debts
were existing at the time of separation, but also a statement of current assets
and debts as well as those existing at the date of the marriage. Both a current
and a proposed budget were also required.
The formal financial statements had the character of sworn
affidavit documents and therefore accuracy of the information and complexity
of the form made the preparation process one of the most time-consuming and
paper intensive parts of the information exchange required by the Rules of Practice
as well as by the Family Law Act.
The most recent changes to the Family Law Rules of Practice
that accompanied the establishment of the Ontario Superior Court, Family Court
( which once upon a time we would have called the "Unified Family Court" across
many new sites in Ontario brought with it a whole new panoply of forms to be
filled out. The financial statement changed but client report it just as time-consuming
to complete as the old one.
At the moment in the Ontario Superior Court, Family Court
one must draft, review with the client and have signed and sworn, then served
on the other party and filed with the court office the following:
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An application
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A financial statement ( which must be updated now and re-sworn
within 30 days of each court attendance)
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a net family property statement
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case information sheet
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a Support deduction order information sheet
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a support deduction order with amounts left blank
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a case conference memorandum that summarizes all the information
already set out in the application;
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a settlement conference memorandum that is yet another
summary of information contained in documents already filed in the court
records,
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a Form 14(c) before each and every court appearance in
essence confirming that yes, counsel intend to show up for the proceeding
which counsel scheduled with the court or vice versa.
And that is NOT the entire list. Every one of those documents
takes lawyer and staff time to compose, produce, serve and file. And legal time
translates into client fees.
A by-product of all that extra paper flowing through lawyers'
offices is that the average case takes longer to deal with, so not only does
it cost more, the waiting time from giving the lawyer instructions until the
documents are done and each step in the court process is done, adds to the length
of time clients must wait.
The Process
Up until the new Ontario Superior Court, Family Court's new
Family Law Rules were introduced in November 1999, you served and filed your
Statement of Claim as well as the notice of motion and supporting affidavit
and financial statement, picked the day you wanted to bring the matter before
the court, received the other party's responding documents, prepared your argument,
turned up at court, argued the motion, and the judge decided the terms of the
interim order.
Often when one party or the other had a pretty unreasonable
notion of their obligations or entitlements, despite the sober advice of their
counsel, the cold water of a judicial opinion expressed in enforceable terms
in the interim order brought some reason to bear. A significant percentage of
actions commenced would reach a settlement shortly after the interim order.
If so, the agreement reached was embodied in "minutes of settlement",
was filed with the court, and the judgment was issued. If there was no settlement
then, the matter continued through more information disclosure to wind up either
settled at a later date, or assigned to the list for trial. Before reaching
the trial, the court would convene a settlement conference, and a judge would
review a memo each counsel prepared about the case, meet counsel and sometimes
the parties as well, and suggest settlement terms. By the time the court room
was reached for trial maybe only 2% to 5% of cases begun were still marching
on without settlement, and of those often the list of issues had been narrowed
somewhat from the lengthy list contained in the original claim and response.
Under the new 1999 Family Law Rules one must go through a
15 minute Case Conference before being able to bring a motion, except in emergency
cases. Some judges will adjourn the case conference to have another installment
of it at a later date if that appears useful. A three quarter hour Settlement
Conference is also held later in the case before the court will assign a trial
date.
These are all useful steps in the process, and assist in many
instances with narrowing and eventually settling the issues, with forcing the
unwilling to make necessary disclosure and so on. But each and every conference
requires either an updated financial statement or an affidavit that nothing
has changed, as well as the 14C form assuring the court that counsel will indeed
be turning up, and a summary memorandum, and a net family property statement,
and in the case of a settlement conference a formal offer to settle. Producing
each and every one of those documents, often several times, even with computer
forms, takes lawyer thought and therefore time and costs clients money.
The Obstructionist Conduct
When one or both of the parties to the dispute is bent on
revenge, and the hostility level is high, recourse to the court for motions
used to harass rather than to achieve a resolution can occur.
Sadly, there is a small minority of family law lawyers who
see themselves as hired guns whose job is to follow uncritically whatever instructions
the client gives without attempting to persuade the client to more reasonable
courses of action. The revenge-seekers and the harassers find these lawyers
eventually, often by firing one or more lawyers who do not agree to act simply
as hired mouthpieces. Having such counsel on the other side of a file causes
resolution-seeking lawyers to shudder, batten down the hatches, and advise their
clients that if they wish to soldier on that it is going to be a long and expensive
fight that is likely limited only by the funds that the other party has to pay
their lawyer. Such hostile parties will also fight on, self-represented when
they have parted company with their final counsel when the money to pay fees
runs out.
Other Factors
This writer would add two more factors that create expense
in family law cases:
Mediation
Mediators in private practice and the mediation teams associated
with the Ontario Superior Court, Family Court are an excellent resource to help
parties who are willing to work to resolve their dispute.
Private mediators whose fee is shared by the couple, and the
court services, where available, with their sliding fee scale based on the individual's
income and number of dependents are cost effective. Negotiating face to face
with the assistance of a mediator rather than in the lengthy exchange of correspondence
between lawyers is also time effective, and therefore also cost effective.
Before entering into mediation it is important that each party
have reviewed their situation with a lawyer of their own to discover their entitlements
and obligations and analyze how the courts would treat their issues in the context
of the facts of their individual situation.
If parties can agree on how to settle they do not have to
do what a court would do, whether that settlement is reached by the parties
with the help of a mediator or through the negotiations between their lawyers.
If parties ask a court to adjudicate an issue, the court is the captive of the
legislation and bound by the decisions of higher courts, and must give a result
that is in accordance with the law.
The knowledge of what a court might do in the situation as
well as full financial disclosure are crucial before you commit yourself to
an agreement, or even embark upon negotiating whether with a mediator or the
use lawyer-lawyer negotiation.
If, for example a spouse agreed to pay $4,000 per month to
the other spouse, but later found out that in their situation the usual range
of court decisions was in the $1500-2000 range, the negotiations and agreement
might well be for naught. Certainly litigation would ensue when the other spouse
answered "Why should I remake the deal, you agreed to pay the $4,000.? Nobody
was forcing you."
How would you feel if you had accepted a property settlement
of a given amount, and did not discover until later that a court would have
insisted that the other spouse's pension be valued and included in the calculation?
You'd be heading back to court to try to remedy the situation, unless there
had been full knowledge, and disclosure, and fair dealing, and you had gotten
something else that made it financially worth your while to forego an equalization
that took the value of the other's pension into the calculation.
As the writer's Aunt Helen used to say, "There's a big difference
between going on a ride, and being taken for a ride." Insist on legal advice
and disclosure. Know what a court would likely do. Then you can freely choose
what rides you do want to take.
If you want to make a deal that lies outside the court result
range, that's fine, but you want to know that you are doing so, and maybe obtain
a tradeoff on another issue in exchange for being more generous than a court
would require.
Each party should prepare complete financial disclosure statements,
endeavouring to be meticulous and honest in them.
The mediator should also screen each party at intake to ensure
that a fair balance of power can be achieved in the negotiations. If spousal
abuse, either physical, sexual or emotional, has been a feature of the marriage
or the separation, then in some cases mediation will not be appropriate at all,
and in others it may be able to occur with appropriate safeguards in place to
protect the vulnerable party.
As the mediation goes along, before feeling committing themselves
to ultimate agreements, the parties should confer with their respective lawyer
to think through the issues and potential solutions.
Even if all issues cannot be resolved, mediation can often
narrow them sufficiently that subsequent litigation can be less expensive as
fewer matters need to be dealt with.
At the moment in Ontario anyone can hang out a shingle and
say they are a mediator. Look to see that the mediator you select has at least
60 hours of formal mediation training and is a member of Family Mediation Canada
(FMC) and the Ontario Association for Family Mediation (OAFM) or some other
reputable professional mediation association. If the person is an Accredited
Mediator with the OAFM, or FMC, all the better. Never be afraid to ask a mediator,
or a lawyer for that matter, what training and experience they have.
Self-Represented Parties
One effect of the high cost of family law litigation has been
an increase in the number of parties who try to represent themselves.
The rules of practice and the court forms are anything but
straightforward. The governing legislation as affected by case law requires
more than a breeze through on the internet or in the public library to fully
understand. It is estimated that a close knowledge of about 30 pieces
of legislation and the relevant case law is needed to be a competent family
law lawyer. And the law changes constantly as new statutes and regulations
are enacted and courts decide cases applying the general language of the laws
to real life situations.
It is impossible to be objective about one's own situation,
especially given the acute vulnerability of parties to family litigation. Marital
collapse is highly traumatic, accurately described in one self-help book as
"crazy time". Few individuals experience separation and divorce without feeling
anger, guilt and fear. None of these emotions form a foundation for the cool
studied appraisal of either one's own position, that of the other party, or
the law that impacts upon it. Lawyers provide not only the specialized knowledge
that takes years, not weeks, to acquire - they also bring experience in the
courts, and objectivity to bear on the analysis of a legal issue.
It has been the writer's experience that self-represented
parties manage to settle their cases far less often than those who are represented
by counsel in either the litigation or mediation process. Not being able to
be objective, lacking confidence in the negotiation, or conversely being unrealistic
and over-confident, coupled with either fear or hostility dooms the process
to require a trial and the imposition of a result by the court.
Trials involving self represented parties can be shorter than
the norm, but only when the self-represented party does not follow the proper
procedures to introduce evidence or summon witnesses and essentially abandons
the case except to make a speech about why they think they should win.
The other possibility is that, having grown up on a steady
diet of American television lawyer shows, the litigant feels himself to be a
better lawyer than the lawyers, and because the trial time is not costing him
anything beyond time missed from work, calls as witness every person who has
ever been a part of the couple's life in an effort to discredit the other party,
whether or not the evidence the witness has is legally relevant, duplicates
the evidence of another witness, or is useful to the judge. Evidence can be
relevant without being persuasive or useful. Such trials can go for weeks when
a trial conducted by legal counsel would have used the best witnesses, restricted
their testimony to truly relevant information, and wrapped up the trial in less
time.
Granted, the hired-gun style lawyer will create and sustain
a long expensive trial at the request of their client so long as their client
remains happy to foot the bill, but happily there are not many such gunslinger
lawyers in family law as television and movies would have one believe.
More Bang for Your Legal Buck
As you have seen in this article the high cost of family law
litigation is real, it is as troubling to the family law lawyers as it is to
the clients, and the paperwork requirements are not going to go away.
So how do you get the most mileage for your legal dollar so
that the two way split of family assets is not between the two of you and the
lawyers? Here are ten tried and true ways to help your lawyer help you with
a lower legal bill at the end of the process.
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Seek the advice of a lawyer who is knowledgeable about
family law. A lawyer who dabbles in family law doing it along with several
other areas of law such as wills and real estate and corporations and criminal
law and immigration and labour law, what used to be called a "general practice",
is frankly not your best choice as a family law lawyer.
Family law has increased in complexity rapidly over the past 15 years, and
if the lawyer does not do a lot of it regularly he or she just will not
be as up to date or adept as a lawyer who does family law as at least half
of his or her practice. Having a lawyer who is uncertain about the law,
or conversely blessed with conviction, but out of date in their knowledge
of legislation, rules, and case law is also very expensive for both parties.
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Make full disclosure and bring all the relevant documents
you can lay your hands on to the intake conference with your chosen lawyer.
(and to every other meeting you have with him or her) Be honest. Tell about
even the things that you think will hurt your position. Expect to be asked
a lot of questions, and be ready to be as accurate as you know how.
The lawyer will respect the confidentiality of what you tell him or her,
although the rules require full honest financial disclosure to the other
side.
Do not keep information back thinking not to tell unless it is necessary.
It IS necessary. If your lawyer discovers that you are not being frank and
honest, you wont be trusted, and the lawyer may in fact refuse to act for
you. The system is designed to run on the basis of full honest disclosure.
A lawyer is ethically bound not to lead perjured evidence to a court, and
if he or she cannot trust that you are telling the truth, their reputation
as ethical counsel whom the courts can trust is worth far more than whatever
your fee might be for continuing to work for you.
And if you only tell part of the story, there is no way the lawyer can give
you accurate advice. You will be wasting your time and money.
By the way, expect the lawyer's advice to you to change as more and more
information becomes available in the case. At the beginning, the lawyer's
opinion to you is based on your information, and that is affected by how
you have perceived, chosen and filtered the information. As the other party's
information comes into play and a more rounded picture is available, a more
refined opinion is possible.
Sometimes the advice later in a case is very different than the advice given
early on. This is especially so where either you did not have very much
information at the beginning, or you chose not to disclose all of what you
did know.
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Organize your information, documents, and your questions
before you see the lawyer. That makes the best use of the time you are paying
for.
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Expect the lawyer to give you a general explanation of
the applicable family law statutes such as the Family Law Act's property
division scheme, the Child Support Guidelines, the statute sections and
case law that apply to spousal support.
Expect the lawyer to know something about child development and be able
to give you some pointers, or direct you to some good reading, about how
to continue parenting your children after separation.
Expect the lawyer to give you as complete an analysis of how the law will
apply to your situation as the completeness of your facts will allow.
Expect the intake conference to take between one and two hours, depending
on the number of issues, the completeness of your information, and trhe
complexity of the issues facing you.
If the lawyer does not give you that sort of attention, service, and information
in your first appointment, gather your papers up, thank them for their time,
pay the bill, and depart to find more thorough counsel.
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Once you have an opinion, go get another one. If you liked
the service you got from lawyer #1, ask him or her to recommend a second
opinion lawyer. If you did not, then ask a lawyer in your community who
does not do family law whom he or she would retain to represent themselves
in a family law situation. In fact, that's a really good way to find your
first lawyer.
Go through that intake process again with lawyer #2. Whether you got good
news or bad from your point of view in the first and second interviews,
you will have a solid sense of what your legal position is and can be, and
about which lawyer you would feel comfortable hiring.
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Do not hesitate throughout the process of resolving or
litigating your case to get a second opinion from an experienced family
law lawyer. Lawyers give second opinions all the time. In fact good
family law lawyers consult each other on problematic cases routinely to
be sure they are doing the best job they can for their clients.
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If your lawyer recommends that you seek therapy from a
marriage and family therapist to help you deal with your grief, anger, panic,
or other emotion that is also part of what you are coping with along with
the complete involuntary reorganization of your financial and social expectations,
go get the therapy.
Ask the lawyer to recommend, or seek a referral through your doctor.
Use the therapist, not the lawyer or the lawyer's staff, to deal with your
feelings issues. Often clients waste their legal dollars complaining bitterly
about their ex spouse's attitudes, drinking, vulgarity, failure as spouses
etc. Lawyers are seldom trained to deal with that. Even a lawyer who also
has social work qualifications is not going to act as your therapist.
Therapists charge a lot less per hour than most lawyers. They have the skills
and experience to help you with the feelings issues. Do not spend time and
therefore money at a lawyer's hourly rate to bitch, complain, ventilate,
or share your feelings. It does not help you. It costs too much. And lawyers
find it emotionally draining, and will begin to avoid returning your phone
calls even when you were simply calling to give the information they asked
for about a witnesses address.
While we are on the topic, your lawyer's secretary and the law clerk are
not therapists either. If you use them to call regularly to ask, "Do you
want to know what that so and so said to me when he picked up Janie and
Jeremy last night?" soon the secretary or clerk will not be wanting to return
your calls either.
If you are experiencing anger, fear, grief, frustration, hatred, weepiness
or emotional numbness, get thee to a therapist. That's the person who can
help you start recuperating and feeling human again.
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For inquiries about the status of your file, or to leave
information that was requested, or to book an appointment, do not insist
that you have to talk to the lawyer. That's why your lawyer has an experienced
and professionally trained legal secretary or legal assistant - to do those
things as well as prepare correspondence, prepare court documents and agreements,
and schedule appointments and court appearances.
A legal secretary is not merely a typist. She's a skilled professional who
can help you and therefore help keep your legal costs to a minimum, She
or he cannot give you legal advice, but on the more routine matters you
will impart the information or get the answer you need without paying the
lawyer's hourly rate to do it.
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If your lawyer has a law clerk doing document drafting
under the lawyer's overall supervision, and working with you on preparing
your financial statement she or he is a highly skilled professional. The
clerk will be doing services that in another firm without clerks would be
done at a higher hourly rate by the lawyer. Using a firm with law clerks
can help maximize the lifespan of your retainer deposit as their hourly
rate is usually half that of a lawyer.
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Mediate. Do not litigate unless you absolutely have to.
We hope this article has helped. We are as frustrated as you
are by the high cost to you of family law legal services. We want the legal
system to help, not to harm our clients. The ten steps outlined above will help
you get the most for your legal dollar by helping you get the best use from
the right people to help you, and will also help you feel confident in the legal
decisions you will be making.
If the Family Law Team here at Lancaster Mix & Welch can help
you, please phone us at 905-641-1551 to arrange an appointment.
We do not give legal advice in response to e-mail inquiries.
Our Family law team now has over 95 years collective experience.
We are Malte Von Anrep, Bruce Wormald, Christina MacNaughton, Kenneth Garland,
Leanne Standryk, Tom Hanrahan, and Stanleigh Palka.
