by H. Christina MacNaughton
This article was written by H. Christina MacNaughton explaining the causes of the high cost of family law.
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:
- the amount of paper that must be prepared under current family legislation and court rules;
- the extent of the court process that must be navigated to comply with the rules;
- 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.
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
- claim or a divorce petition stating what relief was wanted by the initiating party, and why.
- a notice of motion asking for any temporary relief such as interim custody and support;
- 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:
- An application
- A financial statement ( which must be updated now and re-sworn within 30 days of each court attendance)
- a net family property statement
- case information sheet
- a Support deduction order information sheet
- a support deduction order with amounts left blank
- a case conference memorandum that summarizes all the information already set out in the application;
- a settlement conference memorandum that is yet another summary of information contained in documents already filed in the court records,
- 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.
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.
This writer would add two more factors that create expense in family law cases:
- the refusal of parties or their counsel to use mediation before launching litigation.
- self-represented parties who come in two kinds: hostile and inept.
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.
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.
- 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.
- 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.
- Organize your information, documents, and your questions before you see the lawyer. That makes the best use of the time you are paying for.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.