Divorcing? Take Care of YOU First

Well.

Sadly, the New Year brings an influx of new clients to this Divorce lawyer's office..  presumably, people who either did not want to break up during the Christmas season, or, perhaps, who entered the New Year committed not to be in an unhappy situation this time next year.

But whatever the reason, Divorce is never easy.  It is an emotionally draining and traumatic experience for most couples going through it.

Yet, while we intuitively know this, many clients and in fact many lawyers, ignore the need to treat their emotional injuries resulting from divorce.. often to very unfortunate results.

This past year, a very decent individual who was a client of mine clearly could not provide me with the instructions necessary to serve his best interests.  Literally tens of thousands of dollars in legal fees, primarily, in my opinion, a result of seeking to redress the pain and trauma relating to the change in the relationship between him and his wife post-divorce.  When he demanded that I bring yet another in a long list of applications - which I felt would simply increase my fees, but fail to move him towards resolution - I finally ceased to act. 

I often tell my clients, collaborative and otherwise, I am the taxi driver in this relationship.  I will tell you my advice regarding which route is shortest or quickest, I might recommend that certain stops along the way be made or not made.. but ultimately, I take instructions from the client.  It is their life, their assets, their children... not mine.  And as such, they have to give me instructions.

And if the client is emotionally damaged, and is either overly aggressive or excessively passive, they are not able to fully participate in the process to the best of their ability.

As such, my clients are advised to obtain counselling.

And, fortunately, in the collaborative process, we have the option of using "coaches" for the parties to assist them in being effective in the process and to counteract some of the emotional baggage that often drags down a divorce.

So.

Even if you feel like it is YOUR SPOUSE who needs a counsellor.. or perhaps ESPECIALLY if you think your spouse needs a counsellor, get yourself some counselling through the divorce process.  It will help your lawyer, and will therefore help yourself obtain an optimal result, often to significantly less expense.

Supreme Court of Canada and Family Law Roulette

If there wasn't enough reason to avoid recourse to the judicial system already, on December 21, 2011, the Supreme Court of Canada gave us yet another example of why the judicial system has become so difficult to predict.

There was a time.. oh it seems like just yesterday, when the Supreme Court of Canada treated adults as, well, adults.. and respected agreements entered into between them like any other contract, holding in a series of decisions loosely referred to as the "trilogy" (Pelech, Caron, Richardson) that where parties have entered into an agreement regarding support, particularly where that agreement provided an "end date", the Courts had to respect the rights of individuals to establish, by agreement, the terms relating to their divorce.

Then, in 2003, the Supreme Court did an about face, in the case of Miglin, and said, well, those agreements had to be given significant weight, but did not oust the jurisdiction of the Courts to vary those agreements where the agreement was not "in substantial compliance" with the overall objectives of the Divorce Act.

What does "substantial compliance" mean?  Well, mostly, what the judge things is fair, taking into account the considerations set out in the Divorce Act.  And if you ask 50 judges, you will get most certainly, 50 different standards of fairness, as they apply their legal and life experience to vague and ambiguous notions established in the divorce act of "economic advantage or disadvantage" resulting form the marriage, of "economic hardship" resulting from the marriage breakdown.. and other facts set out in section 17. 

The Court did, however, state that agreements properly entered into should be given deference by the Courts and should be interfered with only in rare circumstances.

Now, with the latest decision of the Supreme Court of Canada in L.M.P. v. L.S., the Courts have determined that an agreement is just one factor to take into consideration, given no more weight than any other factor by the Court.

In other words, well, it's a free-for-all.

And here's the problem with uncertainty.  While parties are free to seek to obtain an Order which may be at odds with their agreement, there is a cost.

Quite recently, I had a client who was subject to a support review after 4 years of divorce.  Her husband, in my opinion, was unreasonable, and after a 20 year marriage and two children, felt that 4 years was enough, and sought to terminate support.  At the end of the day, my client was successful, and had her support extended for 8 more years.  She was awarded costs of the application of $2,000.00.  The problem?  It took over one year to complete the review, and her legal fees were over five times that amount.

While many people will laud the Supreme Court of Canada for it's steady march towards a system of "palm tree justice" where each case will rise or fall on their facts, the uncertainty that such a decision creates is not without a significant and real cost.

"Fact" based justice is extremely troubling, particularly in family law, where parties often see their respective positions as unassailable.  And then find that even where they succeed, that "success" comes at a high price, both in terms of financial cost and time and stress related to litigation.

And this comes from the perspective of the "successful" litigant.

Imagine the perspective of the husband in my case.

Often, when parties come to me for advice respective whether or not to litigate, I provide them with a reasoned opinion taking into account the leading decisions of our Supreme Court of Canada and our Court of Appeal, together with a general perspective of the current attitude being presented by our lower courts.

And then I tell them, that, notwithstanding my brilliance, at the end of the day, it's a game of roulette.  Only in very rare cases do I suggest their odds are better than 70/30.

And then I say, would you, in your financial circumstances, be willing to make a $10,000.00 bet on a roulette wheel, if you knew that there was a 30% chance you would lose it all?

The Supreme Court of Canada has just increased the odds against the players being able to predict their outcomes.

And that's where negotiated resolution comes in.

Mediation.

Collaborative divorce.

Keeping control over outcomes in YOUR hands.

It's your choice..   are you feeling lucky?