Ontario Family Law Blog : Barrie Lawyer & Attorney Brian Galbraith : Simcoe County, Canada Divorce, Separation, and Collaborative Law

Trust is essential for every relationship and is often damaged when people are getting divorced. It can be damaged many different ways. An affair, a lie or a betrayal can damage trust. Trust may also be broken when people change and no longer understand each other. They just grow apart. 

In my life, I know how disorienting it is when I have lost my ability to trust someone who I once trusted implicitly. Equally uncomfortable is when someone no longer trusts me. If the relationship is important, I feel frustrated and want desperately to repair the relationship and the loss of trust. Without trust, we can't have a relationship. 

Have you had a loss of trust in your marriage? Maybe there was an affair. Maybe you feel that your spouse has given up on the dream you once shared. Maybe you feel like you or your spouse have done or said too many mean things to each other that you have become like strangers to each other – strangers who can’t trust each other.

Some of our clients want to go to Family Court because they don’t trust their spouse and can’t imagine negotiating an agreement with them. Family Court can’t ensure your spouse will become trustworthy again and you are giving up the power to make decisions about your life to the judge. Court is slow, costly and the results are often difficult to predict. Often, the court process itself increases the animosity of the parties. Court is the place of last resort. Family Court won’t solve the trust issue.

If Family Court is not the answer, is there a better way? How can we build sufficient trust that our clients can negotiate an agreement, keeping the power to decide important issues, rather than go to Family Court?

I came across some interesting research that is helpful. You can use Confidence Building Measures to build trust. You offer unconditional and unilateral gestures of goodwill to your spouse so that your spouse can see you are genuine about wanting to negotiate a deal.

Our lawyers know how to help you to develop and offer effective Confidence Building Measures so that you and your spouse can engage in negotiations. It won't save your marriage but you can build sufficient trust that you can begin to negotiate an agreement and avoid the pain of Family Court. We can help.

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One of the most stressful aspects of separation and divorce is the uncertainty.You don't know how much money you will have, how much time you will have with your children and when the pain will go away. When I went through my own divorce, I hated the uncertainty and I am a divorce lawyer! 

The government of Ontario has launched a new website for the public that helps to address some aspects of the uncertainty. It is called www.YourOntarioLaw.com. It provides general legal information. One page that I especially like shows the inside of a courtroom. 

The problem with the website is that it is so focussed on the Court process. It has only one line about Collaborative Practice which is a way of resolving disputes without going to court. I guess this makes sense since the government is in the business of providing the Court system. It also has very little information about family law. 

Other excellent websites that provide information about the Collaborative Process are as follows: 

www.CollaborativePracticeSimcoeCounty.com This website provides information including professionals in Simcoe County who practice Collaboratively. It is a great resource. 

www.DivorceHappens.ca  This website provides more information about Collaborative  Practice, comparing the cost to the court process. It includes some great videos, and lists professionals I have helped train in the Collaborative Process throughout Ontario. 

www. OCLF.ca This website is our provincial umbrella organization. It has general information about Collaborative Practice. 

More Information...

Our firm website offers both information about the various process choices and lots of information about the law. We regularly receive positive feedback about what a great resource it is for the general public.  www.GalbraithFamilyLaw.com 

Of course, the best way to learn about your rights and obligations is to have a consultation. Our firm of experienced lawyers only practice family law. We offer one hour no-obligation consultations at a substantially reduced rate. You can ask all your questions and get answers particular to your case. Clients feel relieved of the uncertainty after a consultation.

Call 705 727-4242 or email JMcTighe@GalbraithFamilyLaw.com to book a consultation today.  

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Separation and Divorce: These are ugly words. They conjure up feelings of pain, disappointment, fear, and uncertainty. What is the first step? How do I get through this? 

I remember when I went through my own divorce (yes, divorce lawyers sometimes get divorced too) how stressful it was for me. I feared the impact it would have on my relationship with my children and wasn't sure what the financial outcome would be. I felt embarrassed and could hardly focus on anything.  I just wanted to get through it  with the least amount of pain as possible. 

It does not matter whether you were married or lived common law, the first step is to find a lawyer you feel comfortable with and who is committed to resolving the outstanding issues in a cost-effective and timely manner. Simply put, you need to find a Collaboratively trained lawyer. 

Going to Family Court just makes things worse. Collaborative Practice keeps you out of court. 

Collaborative Practice is a way to get through your divorce that minimizes the pain, both financially  and emotionally. It is a problem solving process. You are given the support you need to make the best decisions for your family. 

All of the lawyers at Galbraith Family Law are trained in this process and are committed to helping you get your issues resolved quickly, effectively and with the least amount of pain possible. We give you the information and support you need to find your way to a resolution. 

For more information about the process, here is an article about it. 

Other Collaboratively trained professionals are profiled at www.DivorceHappens.ca and www.CollaborativePracticeSimcoeCounty.com. 

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The other day the judge in Family Court said "We can't consider "fairness" when deciding cases." I was shocked but then I realized that she is right. Family Court is about rules and process. Like cases are to be treated alike according to the law. The law is a set of principles that the judge uses to prescribe the rights and responsibilities of the parties. Judges have a lot of discretion when applying the law to the facts so we speak in terms of the likely "range of outcome". Fairness in family court means applying the rules and principles impartially to each party. The resolution is not necessarily seen as "fair" to both parties. In fact, neither party may feel it is "fair".

One of my clients, referring to Family Court, said "It's not a justice system, it's 'just a system'." How true. Family court is a system intended to resolve disputes. That's all.

This is not in any way to impugn our Family Court judges. We have brilliant judges who care about the parties before them. It's just that the court system is an adversarial system. It isn't intended to meet the core concerns of each party.

Of course, in a sense it is "fair" to impartially apply the same rules and principles to all parties to resolve their disputes. That's what courts do.  

What most people want is a resolution that takes into consideration their core concerns: their underlying needs, desires, concerns and fears. Courts are not allowed to take into consideration the core concerns or interests of the parties. Courts take into consideration only those facts that are logically related to the applicable principles of the law. Judges' discretion is limited by the law.

Collaborative Practice is a process that involves interest-based negotiations. The professionals help the parties discover their core concerns. We then help the parties brainstorm solutions that take into consideration both party's core concerns. It's hard work but in the end the parties have a "win-win" resolution: a resolution they both feel is "fair". At Galbraith Family Law, all of our lawyers are trained to help clients using Collaborative Practice. We also go to Family Court but if we can help you reach a win-win resolution using Collaborative Practice, we do it.

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The Attorney General Chris Bentley, pictured on the left, announced that effective July 18, 2011, all new applicants to Family Court in Ontario must attend the Mandatory Information Program. This is a 2 hour program held at courthouses across the province explaining the Family Court process and alternatives. The intention of the program is to let people know that there are less painful ways to resolve their family law issues than going through Family Court. The motive is excellent. 

The problem with the program is that it is made available only after a court action has been commenced. By that time, the parties are often entrenched in their positions and ready for a long drawn out fight. The mud throwing has begun.

It's like advocating against drunk driving to car accident victims laying in hospital beds. It would be better if parties knew about alternatives to Court before they start their Court case....before it's too late. 

If we could somehow reach out to the public to let them know that they would be better off starting with Collaborative Practice instead of Court, society would be better off. Collaborative Practice is an excellent way to resolve family law issues quickly and cost-effectively, while minimizing the pain, especially for the children. It keeps people focused on problem-solving rather than verbally beating up each other. It keeps people out of Family Court. It works. 

I don't mean to rain on the Attorney General's parade. I believe his heart is in the right place. Families going through a divorce need to know that Court should be seen as their last resort. It's just about timing. The public needs to know before they commence a Court action. 

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Everyone hates having to do a sworn financial statement. This is a court form used in Ontario to list your assets, debts, income and expenses.  It is long, cumbersome and, frankly, a pain to complete. If your case is in Court in Ontario, you must complete the form. The Rules require you to complete it and the court clerks won't even open your court file without you filing a sworn financial statement.

If you aren't in court, I don't blame you if you don't want to complete it.

As your lawyer, we ask you to do a financial statement to ensure that you are protected. Yes, to protect you! We want you to fully disclose your assets and debts on the date of separation and date of marriage to ensure that your spouse cannot wiggle their wait out of the agreement, claiming that you were hiding assets. The Family Law Act allows the Court to "set aside" (which means not enforce) a separation agreement if there has not been full disclosure. 

The financial statement is an easy way to ensure that there has been full disclosure. It is like a checklist for lawyers. 

We ask your spouse to provide a sworn financial statement for the same reasons. It is an easy way to ensure we have a complete financial picture from him or her too.  

Once we have a complete financial picture, we can advise you as to the range of outcome should the matter proceed to court. In other words, we can give you legal advice. Without complete disclosure, we can't give you advice: we are just guessing.

Lawyers can get into big trouble with the Law Society if we give advice based on guesses or assumptions that turns out to be bad advice. Okay... you got me... we are also covering our own butt when we are asking for sworn financial statements. 

Disclosure is Essential

It isn't the financial statement itself that is important - what is important is that there is full disclosure. It's just that the financial statement makes it easy. 

A recent case before the Ontario Court of Appeal, known as Ward vs Ward clearly states that the exchange of financial statements is not necessary but full disclosure and knowledge of the other person's financial circumstances is essential. In that case, the parties exchanged some documentation with the assistance of the family's accountant. Financial statements were not completed but there was full disclosure and knowledge of each other’s financial circumstances.

The court describes the disclosure process in that case as follows:

“...neither party filed a financial statement, nor was one required under the terms of the process to which they agreed. While this did not diminish the obligation to disclose, in this case, the parties relied on the collaborative law process and other avenues of disclosure, including net family property statements and information from Mr. Wetstein [the family friend and accountant]”

In the end, the Ontario Court of Appeal determined that the husband's disclosure and the wife's knowledge of financial circumstances of the husband were sufficient even without sworn financial statements exchanged. The Court refused to set aside the agreement reached.  

Lawyers often use the financial statement because it is easy. It lists all of the categories of assets and debts so you don't miss disclosing something important. In our law firm, we insist on backup documentation to verify every value in the financial statement. It is the backup documentation that is important and fulfills the obligation to disclose. 

Collaborative Cases

In Collaborative cases, the Financial Specialist works with the clients to obtain a complete and accurate representation of the financial circumstances of the parties, usually without the use of a sworn financial statement. The Financial Specialist does a report and attaches the backup documentation for every value. Both lawyers ensure that their client has fully disclosed everything. Equally important, every lawyer must review what the other client has provided to ensure s/he has provided full disclosure. 

In Collaborative cases, as lawyers we always carefully review the Financial Specialist's report with our client to ensure it is accurate. Ultimately, the lawyers will ask for a sworn statement from each client stating that they have fully disclosed their assets, debts and income and that the Financial Specialist's report is accurate and complete. Alternatively, the lawyers will add wording to the separation agreement that states both parties are warranting that they have fully disclosed everything and that the Financial Specialist's report is accurate. Either way works. 

Full disclosure is essential. If you are trying to hide assets or income, we won't be your lawyer. We don't play those games. 

If you don't like having to provide full disclosure, we get it. You are not alone. Complain all you want. We have big shoulders. We want your agreement done right and made to last so just get it done. It’s for your own sake. 

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I interview people who went to Family Court and those who chose Collaborative Practice instead. Clearly, Collaborative Practice is the better way. I hope you enjoy the video.

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Ontario's Chief Justice Warren Winkler advocates for changes to the family court system to make it more efficient, less adversarial and more cost-effective, according to The Globe and Mail. He suggests that litigants should be diverted to mediation or an alternative process to the traditional adversarial process. While I admire the Chief Justice's ambition, frankly, I believe the family court is here to stay. There will always be certain people who just want a piece of flesh torn from the back of their ex spouse and certain lawyers willing to do it. The Family Court will always be a messy, bloody circus. 

We already have an efficient, effective process available to separating couples and it's called Collaborative Team Practice. We have many trained professionals willing and able to help separating couples resolve their issues in a mature, reasonable and private process yet our family courts continue to be overflowing with litigants, hell bent on revenge.

Why?  I think there is some sort of primal instinct in us all that just loves a good fight. Otherwise, why would sports like NHL hockey and professional boxing thrive?  

If you go to a traditional lawyer who loves to do battle, you will be lead astray and end up in family court, paying thousands of dollars to avenge yourself. In the end, you will feel raped and abused. You won't feel good about it. Nobody does.

I applaud Chief Justice Winkler desire to educate the public about alternatives to the toe-to-toe battle of family court. I believe if more people knew about Collaborative Team Practice, it would become mainstream.

There may be a primal instinct to fight but I also believe that deep down most people are reasonable and just want to get through their separation quickly, fairly and cost-effectively. Given the opportunity, they will do the right thing.

To put it another way, given a choice between the brawling, head-injury prone style of NHL hockey versus fast-paced, skill-oriented Olympic hockey, most North Americans will choose the Olympic style hockey every time, hands down. 

If you are getting a divorce, you decide. Court versus Collaborative. Are you a brawler or a reasonable person who just needs some help to get through tough times? 

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Is your relationship over? Have you moved out and now want to resolve the issues? Maybe you have been apart for a while and just want it finalized? You want a divorce!

A divorce is a piece of paper signed by a judge that terminates the marriage. You need it if you want to get married again but before you get a divorce, you first need a separation agreement. It is a legally binding contract between you and your spouse settling all of the issues: the children's schedule, the support and the equalization  and division of property.

The separation agreement is binding even after the divorce so is a very important document indeed. It will govern your relationship forever.

There a few steps to take immediately but eventually, you need to tackle the big issues. Resolving the issues can be challenging. There are six processes you can use to achieve a settlement:

1. Kitchen table: You negotiate an agreement on your own. You bring it to your lawyer who then creates the separation agreement. This process is for very amicable separations.

2. Mediation: You and your spouse work with a neutral mediator who helps you negotiate an agreement. You bring it to your lawyer who then creates a separation agreement.

3. Collaborative Process: This is a very effective process that keeps you and your spouse out of the clutches of the court system. The entire process is focused on settling the issues. This process works extremely well and is my favorite process. Even difficult issues can be resolved Collaboratively. It is cost effective and clients really love the results. There are a lot of advantages to this process.

4. Cooperative Process: You and your spouse each have a lawyer and you work together to resolve the issues.  This process can work effectively but runs the risk of leading to court (not good). Some times it can be cost effective if settlement is achieved but other times the costs can spiral out of control when you end up in court or arbitration. In Collaborative, court is not an option.

5. Arbitration: This process is similar to going to court except that you and your spouse choose the person who will be the judge (called the arbitrator). S/he has the same powers as a judge. The process is more expensive than the others (except court) and you give the power to resolve your family's issues to the arbitrator. Wouldn't you rather resolve them yourself?  

6. Family Court: Court is the most expensive process, takes the most time, is the least predictable and increases the conflict and animosity. Ultimately, a decision will be imposed on you by the judge.  Most clients are unhappy with the process and the results. Here is a full explanation of the court process in Ontario. We see Court as the last resort  so we only go when the other side just won't negotiate in good faith.

Once you have settled the issues by way of court or a separation agreement,, you can get a divorce. We do dozens of divorces for clients each year so we can do this for you. If you want to try to do yourself, here are the steps.

The first step: The first step involves completing an application for divorce (court papers). The application has to be issued by the court so that you have a court file number. The application is then served on your spouse. Assuming s/he does not contest it (if a separation agreement is in place, there is nothing to contest), then after 30 days you can file an affidavit for divorce (more prescribed court papers) asking the judge to issue the divorce. The file will then sit in the court house and wait for a judge to review it. At the time of writing this article, it is taking about 6 to 8 months to get a divorce because the court system is so backed up. Once the judge has reviewed and approved it, you are divorced. You can then get a certificate of divorce issued thirty days later.

When can you divorce? In Ontario, most people get a divorce on the basis of having been separated for one year. The date of separation is the date when one of you told the other that the relationship is over. This can occur prior to the actual physical separation. It is also possible to get a divorce on the basis of adultery or physical or psychological abuse.

One word of caution: A judge does not have the power to grant you a divorce unless there is proper child support being paid in accord with the Child Support Guidelines.

There are many reasons why people proceed with a divorce. Are you ready to seek a divorce?

Whew... now you are divorced... and you can try it again! Good luck. Second time is a charm! I know from personal experience! (See how happy I am now!!)

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One of the questions I am often asked by people who are seeing me for an initial consultation, particularly if their matter involves litigation, is “are you aggressive?” to which I always respond “No.”

When people are involved in family court litigation their greatest fear is that the lawyer who represents their spouse will succeed at intimidating their lawyer, or outshining their lawyer in front of the judge, and this will lead to an unfair result for them.  While this fear is very understandable, it is a mistake to conclude that an “aggressive” lawyer is necessarily a good lawyer and that hiring an “aggressive” lawyer to represent you in court will necessarily lead to a better result for you.

A lawyer’s job is to provide you with information and advice about the law that governs your family law matter and the court procedure, to present your case to the judge accurately so that the judge can either give you suggestions regarding how to move your matter forward or make a determination on an interim or final basis and, most importantly, to assist you in negotiating a settlement with your ex spouse.

Most cases involving litigation are settled prior to any judicial determination having been made. Only about 2% of matters involving family law proceed to a trial. This is largely because a lot of emphasis is being placed by our family court judges on settling matters, rather than having a judge make the decision for you. The “Family Law Rules” that govern the procedure in family court also heavily emphasize settlement of issues prior to trial. Because of these rules you are required to have a Case Conference before you can bring a contested motion before the court. One of the main goals of your Case Conference is to discuss options for settlement of your matter before you proceed further and incur more costs.

Once you have had a Case Conference, you can proceed to bring a motion to seek interim relief such as an interim order for child support, an interim order for spousal support, an interim order for custody and an interim order for access. However this is not as simple as it appears on the face of it, as the family motions court in many jurisdictions is overwhelmed with litigants, many of whom are unrepresented. As a result, the judge may not even be able to hear your case on the date that you scheduled your motion for, and may make you come back another day after having waited all day to be heard. This is not an uncommon experience in Barrie where I practice.

After your Case Conference, the next required step is a Settlement Conference where a judge once again will give you suggestions on how to settle your case. If you cannot settle at the Settlement Conference the judge will schedule a Trial Management Conference. At the Trial Management Conference there is usually another attempt to settle the case. If the case does not settle, the judge will make a Trial Management Endorsement which lays out all of the steps for each party in preparing for trial and sets time lines for serving and filing your materials for trial. There is then a trial scheduling court when you would be scheduled to be heard during a specific “trial sitting”. However, there is no guarantee that your trial will be heard during those sittings, as matters are often not reached and are adjourned to the next trial sittings. It can easily take up to two years from the date the litigation commences for your trial to be heard.

At every step in the proceedings you will likely be encouraged by the judge to settle your matter prior to returning to court. There are many ways of negotiating a settlement of your family law issues, even when you are involved in litigation with your spouse. You can still attend mediation, have four way meetings with your lawyers and negotiate at court prior to and after having seen the judge. There have even been some cases that I have had where the parties have agreed to put the litigation on hold and have signed a collaborative agreement that they will attempt to resolve their matter out of court.

There are many advantages to negotiating a settlement rather than allowing a judge to make a decision for you. These advantages include, but are not limited to the following:

a)      Costs- the cost of litigation, if you have a lawyer of record, is prohibitive. This is mainly due to the time spent waiting with your lawyer to be heard. Each day in court can cost you as much as $2,000 to $3,000. By settling your matter early on in the proceedings, you are potentially saving yourself thousands of dollars in future legal costs.

b)      Dissipating conflict- it is widely known that conflict between parents can have very adverse effects on their children. Litigation, particularly contested litigation, has a tendency to inflame conflict between the parties as things are said in court documents about the other person  that are very hurtful. The children can feel this tension between their parents and it affects their sense of security and stability. Sadly, some parents use litigation to alienate their children from the other parent and this can have devastating effects on the children’s future development. As an old African proverb states- when two elephants fight it is the grass that suffers. Similarly when parents fight, it is their children that suffer most from the conflict.

c)       Having more control over your life- it is a mystery to me why anyone would ask a complete stranger, i.e. the judge, to decide for them what will happen to their children, their finances, their property, etc… No matter how good your lawyer is at presenting your case, the judge has very little information before them from which they can make these decisions and often there is a lot of conflicting evidence that they have to weigh in making a decision. Some people think that the judge will punish their spouse for their bad behavior (eg. Having had an affair and abandoned their family). This never happens as the judge’s role is not to assign fault for the marriage breakdown. They are simply trying to put each party on a relatively equal footing as they start their new life and to ensure that children are properly cared for.

Very often, the result of the litigation is very predictable and a lawyer with experience in family law can give you an idea fairly early on about what will likely happen if you went to trial. If you are wise you will heed their advice and settle on this basis.

The danger of hiring an “aggressive” lawyer is that that lawyer will take control of the litigation and keep it going when it would actually be in your best interest to settle the case. You should always be doing a cost-benefit analysis for yourself to determine whether pursuing the litigation may end up costing you more than settling the litigation. Also, keep in mind that there are other costs to litigation that are not pecuniary in nature such as the stress that it causes for you and your children and the time that it takes away from your other activities. 

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Linda L. Piff, a respected lawyer and blogger in New Jersey, writes in her blog, reproduced below, that Collaborative Practice is far more cost effective than litigation.

Although most family law cases do eventually settle, they do so on the court house steps after most of the damage of litigation has occurred. The inflammatory court papers have been filed and become a public record, large sums of money have been spent on litigation and the children become victims of the divorce process.

Collaborative divorce in a relatively new concept for New Jersey. It was approved by the Supreme Court as a way for parties to divorce on December 5, 2005. While relatively new, collaborative practitioners are experiencing a demand for this way to divorce.

In a collaborative case, the parties agree not to litigate from the onset. Unlike mediation, which uses a neutral as the only professional in the dispute resolution process, in a collaborative case each party is represented by an attorney. The value for clients is that they avoid the damage that is done through litigation and save the expense of the lengthy court room battle.

What can be said with confidence is that no other kind of professional conflict resolution assistance is consistently as efficient or economical as collaborative law for as broad a range of clients. While the cost of attorney fees cannot be predicted accurately, a rule of thumb is that collaborative law representation will cost from one-third to one-half as much as being represented conventionally by a lawyer who takes issues in your case to court.

Our experience in Ontario is the same. Collaborative practice is a far more efficient and cost-effective way of getting through your divorce.  Learn more about Collaborative Practice. 

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Many people who are separating want to avoid paying legal fees as they feel they cannot afford a lawyer. While it is very understandable that people feel this way, as lawyers generally bill at a high hourly rate, there are some very good reasons why you should at the very least consult a lawyer if you are going through a divorce. Not doing so could potentially cost you a lot more than the legal cost you will incur in consulting or retaining a lawyer to assist you with your separation.

When clients come see me for an initial consultation they tell me that their “friends” have told them various things that have sent them into panic mode. Very often the information that they have obtained from their “friends” is inaccurate or has been exaggerated or twisted in some way. Some of the common “myths” that I hear almost on a daily basis are as follows:

• If parents have joint custody of children then neither parent pays child support;
• If a spouse leaves the matrimonial home he/she will lose all of their rights to the home;
• If a parent is an “access parent” they do not have the right to information about a child from schools, doctors, etc…
• Common law partners share property in the same way as married people;
• People are considered “common law” for family law purposes after only one year of living together;
• All people have to do to “equalize” their property is to share their assets equally when they separate.

All of the above statements are inaccurate and misleading. If someone was to follow this advice it could leave them in a position where they enter into an unenforceable separation agreement with their spouse, only to end up in court several years later and having to start from square one.

I always encourage people to settle the issues arising from their separation as expeditiously as possible and to minimize the involvement of lawyers if they want to keep the costs to a minimum. That being said, in order to have a valid and enforceable separation agreement, you need to first understand how the law applies to your family’s situation. You also always need to exchange full and frank financial disclosure of your income and all assets and debts as of marriage and as of the date of separation as any agreement done without disclosure is liable to be overturned by a court if it is ever challenged at a later date. I have even seen agreements overturned at the request of the party who drafted the agreement on the basis that there was insufficient financial disclosure exchanged at the time of the drafting of the agreement !

It is also wise to obtain “Independent Legal Advice” and to have a certificate attached to your agreement to verify that legal advice was obtained. It is also important for your spouse to have independent legal advice. This way, neither party can later argue that they were not aware of their legal rights when they signed the agreement. Another advantage of having independent legal advice is that if the lawyer has failed to properly advise you about your legal rights and responsibilities or the agreement is poorly drafted, and you have economic damages as a result of the lawyer’s failure to give adequate legal advice, you can sue the lawyer and obtain compensation from the lawyer’s professional insurer. This is very similar to “title insurance” in that it your agreement is in effect insured if you have a lawyer review it and give you independent legal advice.

If you want to minimize your costs, try negotiating an agreement “in principle” with your spouse either directly, or through mediation and get a lawyer to draft up an agreement based on your agreement in principle. There is also the “collaborative practice” model where you come to an agreement by meeting with your lawyers in four way meetings without going to court which is usually far less expensive and more efficient than litigation.

If you want to save money,  going to court should always be a last resort. Going to court with a lawyer is especially expensive because so much time is spent waiting outside the court room to be seen by a judge. On occasion people go to court, spend the entire day waiting to be heard and are told at the end of the day to come back another day as the judge has run out of time to hear their matter. If you have a lawyer with you waiting, you may have already spent up to $2,500.00 waiting for nothing just for that one day.

Many people at court are unrepresented (as much as 60% of the litigants). These people find themselves waiting hours to meet with duty counsel who can only assist them if they are “financially eligible”. The test they use to determine eligibility is a stringent one and is meant to limit the service to those who are truly below the poverty line. People who have a full time job are most often not eligible. Trying to understand the court process without legal advice can be incredibly frustrating as there are a myriad of court forms and procedures that you need to know in order to be prepared for court. If you do not come prepared, the judge could simply refuse to hear your case or may not have the facts s/he needs to make a proper decision or to direct your matter properly.

The bottom line is that it pays to spend a few dollars to have a consultation with a lawyer before you make any decisions regarding your separation and divorce and to retain a lawyer to draft an agreement or give you independent legal advice. That way, you may only have to do it once and can likely avoid the terrible experience of having to go to family court only to end up with the same result.

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My financial planner suggested to me that divorces are a better investment than weddings. “What are you talking about?” I asked curiously. She retorted “Well, as I see it, clients probably spend the same or more money on their weddings knowing full well that almost 50% end unhappily. On the other hand, divorces are almost always “forever and ever!”

I enjoyed a good belly laugh! She had a point!

Most families are happy to spend money on a wedding because it such a happy occasion. I remember my weddings (both of them) as two of the happiest days of my life. They were filled with optimism, love, friends and family. My first wedding (when I was in law school) was paid for by our parents but the second one was paid for by us. I do not regret a dime we spent on that joyous event.

On the other hand, I did not relish spending money on legal fees when I went through my own divorce. Yup. Even though I had been a divorce lawyer for 13 years at the time of my own divorce, I still retained my own lawyer. I took heed to the old adage “A person who represents himself in legal proceedings, has a fool for a lawyer”.

If you are facing a divorce, I bet you are afraid it will cost a fortune. I don't blame you. I have heard some horror stories too.

So, what are the costs of a divorce?

It depends on what process you use and the amount of time it will take for your lawyer to help you resolve all the issues. Lawyers and their staff bill on an hourly basis.  

Kitchen Table: Many people get legal advice and then negotiate a deal directly with their spouse. One spouse becomes my client and I offer advice about their deal. Assuming it makes sense, I will then draft a separation agreement based on their agreement. Most agreements are usually in the range of about $1,200 to $1,500 at our firm. This is an inexpensive process but requires that you and your spouse are able to negotiate together without the help of anyone. 

Mediation: The mediator is a neutral third party who will help facilitate you and your spouse negotiating a deal. Once it is completed, a mediation report is sent out to the lawyers. I review the report with my client so s/he understands the range of outcome according to the law. If the deal still makes sense, I will again draft a separation agreement based on the mediated agreement. The cost is usually in the range of $1,200 to $1,500.

Independent Legal Advice: Whether a “kitchen table” or mediated agreement, the other spouse should get independent legal advice (ILA) before signing the separation agreement. I always prefer my client’s spouse to get ILA so that s/he can’t attempt to wiggle out of the agreement in the future because s/he did not understand the terms of the agreement when they signed it. So, ironically, I want my client’s spouse to have ILA to protect my client, not so much to protect the other side. 

If the other spouse just refuses to get ILA, I will insist that they sign a waiver of ILA which simply says they were encouraged to obtain ILA but chose voluntarily to waive their right to ILA before signing the agreement and that they understood the meaning of the agreement before signing it.

Traditional Negotiations: If I represent my client in a traditional negotiation, the costs can range from $2,000 to $50,000 or more. I know. That's a pretty big range! Often traditional negotiations will lead to arbitration or court so the costs can spiral out of control.

Court: The court process is very costly. Even the simplest court case will cost at least $10,000 and most are in the range of $15,000 to $25,000. If the case goes to trial, the costs can be two or three times higher. I have heard of some cases where clients have paid over $150,000 in legal fees and these are normal local people like you and me... not Hollywood stars with money to burn. Some crazy cases can result in legal fees of over a million dollars but those are rare.

Collaborative Practice: A far more cost effective process than the court process is the Collaborative Team Practice process. In a Collaborative case, you and your spouse each retain your own lawyer to help you negotiate an agreement. Your lawyer will offer legal advice and ensure the resulting agreement is legally enforceable. At the beginning you and your spouse, and the professionals, sign an agreement that they will not go to Court. If one chooses to go to Court, both parties have to find new professionals including new lawyers.This has a huge impact as everyone is committed to negotiating an agreement.

To keep the costs to a minimum, the parties work with a Divorce Coach who will help the clients manage their emotions and case manage the process. As you can imagine, hot emotions often side track clients, especially in the court process, causing legal fees to escalate exponentially.

A Parenting Coach will also work with the parties to resolve the issues related to the children. Not only does the Parenting Coach facilitate the negotiations around time with the kids, the Parenting Coach is an expert in the needs of children so can offer sound, practical advice about what the children need in a settlement.

A Financial Specialist will help you and your spouse collect the various financial documents needed and facilitates a discussion of the financial issues.

The hourly cost of the Parenting Coach, Financial Specialist and Divorce Coach is usually substantially less than the cost of lawyers and the costs are shared by the parties so there are big savings to you. Clearly, two lawyers are far more expensive than one coach or one Financial Specialist shared.

In the end, most Collaborative cases are substantially less costly than court cases. In my experience, they cost between $2,000 to $6,000 per client. The cost is dependent upon the time necessary to negotiate an agreement but by using coaches and a financial specialist to do much of the negotiations, keeping the case out of the lawyers’ offices, you really minimize the costs.

Furthermore, by keeping the case out of court, costs are kept to a minimum. Court is very expensive due to the many forms and steps in the process, and the cost of waiting for the judge to hear your case. I have waited all day for a judge to hear my case and not been reached, costing my client thousands of dollars in fees. 

Upon the conclusion of the Collaborative process, a separation agreement is reviewed and signed by the parties with their lawyers. Over 85% of cases result in a full settlement of all the issues. It works well and is very cost effective compared to Court.  

I firmly believe that the Collaborative process is the best way of resolving divorce and separation issues. In fact, I no longer accept cases that are court-bound. Our four associate lawyers still take on court cases but after 21 years of litigating family law cases, I know clients are better off using the Collaborative process. So, no court for me or my clients! 

Divorce: The final step after an agreement has been signed is to complete the divorce. This is achieved by completing and filing some paperwork at Court. It takes about six months to get the divorce judgment back from the court and the cost for uncontested divorces in Simcoe County is $1,250.00 plus sales taxes. Our fee includes the filing fees which are over $500.00 and all the disbursements etc.

Of course, these cost estimates are the existing costs at the time of writing this blog. They will vary over time.

Retainers: We always require a retainer which is a deposit of money into trust for future legal fees. Presently, our retainers are: Separation Agreement $1,200; Collaborative case $2,000; Court case $3,000; Uncontested Divorce $1,250. Each month you will be billed for our time and you have to replenish the retainer.

Why is it so costly? One client who had a sense of humour, an especially unhappy marriage and very bitter divorce shared with me his “analysis” of why divorces cost so much. He said “They’re worth it!” I like his attitude! 

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Family Court in Barrie was filled with joy, happiness and love today. No, I am not intoxicated or otherwise delusional!  I was representing a client completing an adoption. It was great.

Justice Olah, our local family court judge, brought out toys for the children to play with, paper to draw on and an assortment of toys from earlier days when her kids were young. She never brings out such fun things for us lawyers to play with in her courtroom. We are relegated to playing with our words, documents and the Rules of Court! Kids have all the fun!

Justice Olah was very sweet and caring yet appropriately professional.  My client today was a grandmother adopting her five year old granddaughter. Justice Olah spoke to the child at length about her drawings and the toys she was playing with and her love for her grandmother. She asked my adopting client if she promised to love and care for her grandchild forever. In turn, she even asked the five year old child if she would "love and kiss and hug her mommy forever". Of course, the response on both occasions was a resounding "yes!" It was a nice touch.

We regularly do adoptions for clients. The most common type is step-fathers who are adopting their wife's children when the biological father is no longer interested in being a parent. Of course, step-mothers adopt children too. We recently received an inquiry from a lesbian couple who had a baby using sperm from an anonymous donor and wanted the non-biological mother to adopt the baby. I look forward to helping that couple get their adoption completed too.

After the ceremony, Justice Olah obliged the parties with photographs. The child and Justice Olah posed for one and then several were taken with the whole family (including me).

Often family court judges don't have the opportunity to preside over joyous events such as consent adoptions. More often, their task is to deal with acrimonious and vengeful spouses seeking to distribute the spoils at the end of a marriage. Today, on the other hand, was full of joy, hope for the future and love.

I think Justice Olah would like more days like today.

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Can you imagine receiving a $150,000 per month, tax free? Karen Sala certainly could and sued Keanu Reeves hoping he would be ordered to pay that tidy sum to her. She was not successful.

A recent article in The Star declares that the paternity case against Keanu Reeves by Sala was dismissed by the Ontario Courts. According to The Star, Justice Graham declared that the allegations against Reeves were "so incredible" that no reasonable judge would accept them.  The judge said having a trial would be a waste of limited judicial time.

Karen Sala was seeking $3 million a month in spousal support and $150,000 a month in retroactive child support. She alleged that Reeves was the father of her four adult children.

It is remarkable that she pushed the case this far. DNA tests had been done which indicated that Reeves was not likely the father of the children. DNA tests cannot say with full certainty if somneone is the father but they are accurate 99.9999% of the time. Usually, that's good enough for the judges to dismiss the case as happened in this case.

As Ms A.J. Jakubowska notes in her blog, child support payments in Ontario are not tax deductible for the payor and the recipient does not have to claim them as income. Sala would have been able to pocket $1.8 million dollars per year, tax free, had she won her case.

How is the amount of child support determined? 

Child support payments are set in accord with the Federal Child Support Guidelines. For Ms Sala to have received $150,000 per month, she would have had to prove that Reeves' income was about $8.5 million annually. I guess that's possible...

As Ms Jakubowska, a Newmarket family lawyer, notes in her blog, spousal support is tax deductible to the payor and must be claimed as income to the recipient. So, if Sala had been successful, Reeves would have been able to deduct the spousal support from his income but not the child support.

Certainly there is an incentive to sue for child support when the stakes can be this high but DNA tests constitute a mountain too high to overcome. You can't just allege someone is the father of your children these days expect to get away with it. If you are lying, science will prove you wrong. How DNA tests work is a sample of hair from the father, mother and child are analyzed in a lab. The DNA of the child is compared to the DNA of the "alleged" parents to determine if paternity is possible. Courts like the certainty of DNA tests.  They normally end the case one way or another.

Ms Sala was tenacious. She persisted in court. She lost. Case closed. Next? .....

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