Always a difficult topic for Collaborative Lawyers, the issue of how to provide legal advice without creating positional confrontation is a difficult one.
Particularly in the area of spousal support.
We are all aware of the spousal support guidelines in Canada. They seem like a nice, handy way of giving a client some knowledge of the range of spousal support they may be entitled to.
However - beware.
Clients come to their lawyer in an heightened level of anxiety and insecurity.
Their relationship has come to an end, and whether they are husbands or wives, they are very afraid of the uncertainty inherent in the process, and will gravitate to anything that looks like a "hook" that they can hang their expectations on - and if the lawyer is not careful, or worse, is lazy, they may pull out their Child View or DivorceMate and do a quick print out for the client at their initial interview and say, "there, that's how much support you're going to get."
Problem is, first of all, that's just wrong at law.
The Spousal Support Guidelines are not binding upon the Courts, and, my recent research in that area, at least in Alberta, shows that at higher levels of income, the Courts are in fact unlikely to apply the guidelines.
So.
Strike one for the lazy lawyer.
Giving bad legal advice, creating a false expectation, and making it much more likely that the Collaborative process is going to fail.
Beyond just being wrong, however, guiding the client to a position at the outset of the process takes away from the whole essence of the process in that it prevents a client from opening their mind to other options that may or may not be premised on maximizing their monthly spousal support payment.
Which isn't to say that we should abandon our obligation to provide proper and complete legal advice.
But it's a question of how and when.
My advice?
Explain to the client the concept of spousal support as expressed by our Supreme Court of Canada - and avoid providing the client with hard numbers of what they can expect.
Particularly when "income" of the parties has not been established.
Often spouses over- and under-estimate their income and their spouse's income.
Often spouses fail to consider their own obligation to work towards achieving self-sufficiency - such that they may have income, or may have income imputed to them at the end of the day.
So - rather than set yourself up for an embarrassing failure - allow the spouse broad general advice at the outset, and then work, over the course of the process, to narrow the issue through discussions of needs, of means, and, in due course, of the law as it may apply to those now more established understandings.
Some time ago, I was involved in a Collaborative file where a wife had a pre-determined idea of her "entitlement" based upon her own research. During the course of the file, it was apparent, however, that she had failed to consider the impact of settlement upon the husband's income, she had failed to consider income that would reasonably be imputed to her resulting from the settlement - and when she still clung to the mid-point on the spousal support guidelines, ultimately, counsel jointly provided recent case law to show that it was improbable that the Courts would award a support at the mid-level of the Guidelines.
She clung to her original position like grim death.
Counsel jointly discussed the likely outcome a failure to find a compromise - including the costs of litigation, the potential costs awarded against an unsuccessful litigant, and the time it would take to find that resolution.. and still, she was firm in the position she established for herself at the first meeting.
The Collaborative process failed.
The parties proceeded to litigation.
The wife's expectations were, no surprise, not met.
Now - in fairness to fellow counsel - they did not create the expectation - but the case illustrates the difficulty of positions being established early in the process. So don't encourage it. You can explain to the client that the Guidelines exist, you can explain that they can impact the Court - but are not binding, and may even explain in very broad terms what the range of guidelines provide, but also be very careful to also indicate that as they are not binding, the Court - which is the final arbiter if a deal can't be found - may award amounts less than Guideline amounts - so, better to discuss the overall picture of the parties specific to their means and needs - to find a solution which appears acceptable to both parties - which may or may not coincide with the Guidelines.
And for non-lawyers reading this - the message? Do not be seduced by the Guidelines. They are "suggestive" and are not in any sense "binding". Enter into discussions with a view to finding a final outcome that appears to result in a resolution that appears to establish a reasonable balancing of ALL parties' interests - all factors being considered.
