For fellow Collaborative professionals, clients and anyone dealing with divorce, Gary Direnfeld provides us with an excellent perspective on parents who find themselves hating each other and how that might impact their children.

I think the article is so timely that I decided to reprint it (Gary was kind enough on his site: YOUR SOCIAL WORKER, to allow permission to reprint the article as a handout or newsletter).

Thank-you Gary!

What’s a kid to do when parents hate each other?

Sometimes the animosity between separated parents is so thick, you can cut it with a knife. In such cases both parents deflect blame on the other while denying or minimizing their own contribution to conflict.

In some instances the allegations of both parents are unfounded. The parents are like oil and fire and simply do not get along. They both may be hurt for the demise of the relationship. They may feel embarrassed for the breakdown and need to vilify the other. Each stakes out the position of being hard done by the other thus gaining the sympathy of friends and family.

In other instances mutual allegations are founded. Both have in fact acted untoward. Both have acted poorly although not abusively. Yet, neither takes responsibility and both use the transgressions of the other to legitimize their own.

Pity the children whose parents are so locked in mutual despise. The child becomes the battleground. Each parent begrudges the child’s relationship to the other. Even though a parent may hold their tongue, the attitude still exudes. The child lives with their disdain.

The child is between a rock and a hard place. To survive they learn to mask their feelings. To avoid the disapproval of their parents they align with each parent through negative comments about the other. So when with mom the child tells bad stories of dad to gain mother’s approval and minimize tensions with her. Then with dad the child tells bad stories of mom to gain his approval and minimize tensions with him. Sadly though, the strategy only feeds the conflict between the parents as they feel more justified in their position with the new ammunition delivered by the child. Thus the parental conflict escalates and the child is subject to greater hostility, particularly during child custody disputes.

Eventually the child breaks down under the strain of conflict between despising parents. The child’s distress may take the form of school related problems, anxiety, depression, bullying, victimization and even physical complaints such as headaches and stomachaches. Because of the pre-existing parental animosity and then stories of the child, both parents blame each other for the child’s distress. Both parents present self-righteously in their position and both parents are remarkably defensive towards any insinuation that their behaviour may be contributory to the child’s distress. Both parents present with a profound sensitivity to feeling blamed. Discussing their dynamic with one parent can trigger a defensive barrage of the issues of the other parent.

In situations like these, favourable outcomes for the child are best achieved by working with both parents.

The service provider must be well experienced in working with such high conflict situations and the dynamics as described. The approach requires expertise with clinical assessment, mediation, education and reconciliation counselling.

Eventually, the parents must be brought along to understand that their antagonistic tug of war is the toxicity hurting their child. In some situations both parents feel they must let go of the rope at the same time. In other situations some parents take the position that the other parent must go first with regard to making amends or changes. The challenge is to achieve a plan for both parents that encourages a relaxation of the animosity and new collaborative behaviour. Finally, the child needs to be brought into a session with both parents where they demonstrate their maturity by cooperating for the child’s sake and grant permission for the child to love both parents equally.

One never knows at the outset, if one or both parents can muster the maturity to take responsibility for their contribution to conflict. However, there is a secret to ending tugs of war… Only one side has to let go. The question is who is going to step up first.

What's a kid to do? Send both parents for help!

 

Gary Direnfeld, MSW, RSW
(905) 628-4847

gary@yoursocialworker.com
www.yoursocialworker.com

Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert on child development, parent-child relations, marital and family therapy, custody and access recommendations, social work and an expert for the purpose of giving a critique on a Section 112 (social work) report.

 

Say "Hello" To Canadian Collaborative Practioners on LinkedIn

Well. 

The Canadian contingent at the recent IACP Conference in Chicago was loud and proud last week-end.

Of course, in addition to excellent conference speakers, I did have the opportunity to visit some of the more historic landmarks of Chicago...

During the conference I had the good fortune to gather with my fellow Canadians at the "Rock the Block" party on Friday night, which as you might expect, was closed down by the Canadian contingent.  And, like any good Canadian gathering, there was hockey, beer, Caesars (we smuggled in copious amounts of Clamato) and Smarties and, the highlight, a Canadian content quiz with our own version of Alex Trebec, Ottawa Collaborative Lawyer, Chris Arnold...



Taking advantage of the location, Canadian collaborative professionals gathered for a short meeting to discuss Canadian issues in Collaboration, and to continue the connection over this broad country we encouraged all Canadian Collaborative Professionals to maintain the connection via our LinkedIn group, Collaborative Professionals Canada.  To join the group all you have to do is set up your own "Linked In" account and then search for Collaborative Professionals Canada.. and, well, "link in".

Hope to see you all there and to continue the conversation from where we left off in Chicago.

Oh.

And I would be remiss if I didn't plug the newly unveiled International Association of Collaborative Professionals blog, at Be-Fulfilled.org of which, for reasons beyond me, they have included me as one of their featured bloggers.

Connect.  Share ideas, ask questions - join the conversation!

If You Thought Family Law Wasn't Confusing Enough Already...

Well.

How many of us have found the resolution of a family breakdown to be a complex and difficult task?

Well, if it's difficult with two people - imagine the parameters of discussion and potential disagreement when the union is a union of three people.

No.

We're not talking about a a fundamentalist Mormon sect.. we're talking about an expansion of the liberal notion of "marital relationship" in Brazil, where, today, we read that a civil union was recognized between two women and a man who had already been living together, with a three-part joint bank account, for three years.

According to Public Notary Claudia do Nascimento Domingues, who confirmed the union, the man and two women should be entitled to family rights.  According to Ms. Dominques, "there is nothing in law to prevent such an arrangement."

Well.

How about that?

And what does that have to do with Collaborative Law?

Well, firstly, I suppose, should that union not work out, it may well be that a collaborative response to resolving differences might be more able to address the unique issues that the law, to this point, been required to grapple with.

But, beyond that, it reflects the reality that parties in interdependent relationships are not "cookie cutter" versions of every other relationship, and just as society is evolving to allow parties to organize their lives on THEIR OWN TERMS - perhaps, a process which is also controlled and effectively created BY THE PARTIES would be the best model to respond to difficulties or disagreement in that relationship.

Just sayin'

From Georgialee Lang: Is Collaborative Law a "Wolf in Sheep's Clothing"

Hello Little Red Riding Hood..   Welcome to Court!

Well.

In a recent article - August 3, 2012 in Canada.com - Georgialee Lang suggests that clients be wary of Collaborative Divorce, suggesting that it's a "wolf in sheep's clothing."

Georgialee appears to be a family lawyer of some significant experience and skill practicing in British Columbia, and, as many lawyers who criticize the formal Collaborative Process, her article critiquing the process ends with the now common refrain, "I have always practiced family law collaboratively, I just didn’t adopt the tag."

The theme of her article, essentially, is that:

a) Collaborative Divorce misrepresents itself:

"Whether it can be said to be less expensive is another issue, because the collaborative process also provides much-needed work for underemployed counsellors, child psychologists, domestic abuse specialists and financial experts.

It has also led to the growth of professionals who call themselves divorce coaches and parenting coordinators. With the addition of one or more of these “experts”, one can easily imagine spiralling costs. In one case involving a short marriage with no children, the collaborative process cost a couple $55,000.

This is not intended as a criticism of divorce coaches or parenting coordinators, who can each play an important role, however, to suggest this parade of professionals comes cheap is disingenuous at best and outright misleading at worst."

b) Collaborative Divorce is just another way of strong-arming:

"But make no mistake. Despite what you may have heard, collaborative lawyers are still out to get the best deal they can for their clients. In one respect they are like “wolves in sheep’s clothing” as they implement strategies usually reserved for “bulldog” lawyers, including the dreaded “Nothing is settled until everything is settled” and “We refuse to counter”, driving one party to negotiate against him or herself."

So.

What do we, as Collaborative Lawyers, do in response to this?

Well.

First thing we ought not do is ignore possibly valid criticism.

We should not be marketing or describing collaborative divorce as a "money-saving" process.  It could be.  But then so could arbitration, or mediation, or flipping a coin to determine custody of a child.  The value of any choice should not be how cheap it is, but, rather, how effective it is.

And that leads to a second potentially valid critique.

If we are not careful, a collaborative divorce can become overly prolonged, inefficient, and, in the bargain, excessively expensive relative to the results obtained.

The clients and the lawyers must be diligent in assuring that collaborative meetings are productive, that they are finding results for the parties, and are not misusing the process to either prolong, unnecessarily, discussion without purpose or creating added expense without results.

Particularly in a case where one party is paying all of the costs of the process, there can be abuse.  The clients and the lawyers should be alive to that concern, and be prepared to address it, if need be, and, in an appropriate case, to end the process where progress is not occurring.

Beyond that, I take some offense to her suggestion that "make no mistake... collaborative lawyers are still out to get the best deal they can for their clients."  If the suggestion is that collaborative divorce is just another way of getting "the most dollars possible" or paying "the least dollars possible", in my opinion, that's clearly wrong.  And it either betrays an ignorance of the process on Ms. Lang's part (my guess), or perhaps an effort to "protect turf" by a litigator.

I have to say, I have encountered collaborative files that have become positional.  Files where the collaborative lawyer, while trained, didn't fully make the leap that positional bargaining has no place in a collaborative file.  Who didn't understand that the traditional approach of seeking to threaten, cajole, or manipulate to obtain the greatest amount of financial benefit (or time with children) is overly narrow in addressing a client's interests, and, in general, has a tendancy to create an atmosphere in which clients are more likely to make poor decisions about their settlement options.

But those experiences have been very, very limited.

The vast majority of collaborative files, in my experience, have lawyers who have comfortably removed their own interest in the outcome.  In other words, they are not "trying to get everything they can possibly get" for their clients.  They are invested in empowering their clients to fully and completely understand their options, their legal status in the matter - and the "big picture" which will, most certainly, include issues relating to entitlement to property and support issues and how that will impact their future.  However, the collaborative process allows parties to expand their view of what their full interests are - including the importance of considering the impact of their choices on their children and on themselves - in which money received or paid is perhaps only one of several factors to consider.

So.

A "wolf in sheep's clothing"?

Hardly.

But, as a litigator of some 26 years experience, I can guarantee you one thing: the court system is DEFINITELY no place for little red riding hood.

Finding a "Real" Collaborative Professional

For clients, and collaborative professionals, this morning I received a note from the IACP advising that they have received information that IACP members are being solicited to advertise in an on-line directory with Mediate.com and CollabLaw.com.  A copy of the notice is as follows:

Dear Robert,

We have just learned that many IACP members have been or may yet be contacted by Mediate.com/CollabLaw.com with a commercial solicitation for placement in an on-line directory ostensibly dedicated to Collaborative Practice. Please be assured that IACP did not release your name or contact information and had no involvement with or consultation into the content of this offer or this directory. IACP will never release your name or contact information for any purpose to any vendors. Unsolicited commercial email can be reported as "spam" to the marketing company through which the e-mail was distributed.

We are concerned regarding this directory as it apparently lists anyone who has paid the fee to be included, whether that professional actually offers Collaborative Practice services or not. There are many services divorcing couples could consider. And, we believe the professional community who serves these couples owes them clear information. Advertising oneself as a Collaborative practitioner when, in fact, one does not offer Collaborative Practice services is misleading to the public and does a disservice to consumers who are sorting through complex issues during troubled times.

We urge IACP members to be very clear in all the ways and through all the means by which you educate the public about Collaborative Practice.

With best regards,

Lynda Robbins, President

Talia Katz, Executive Director

The concern raised is that there is no need to verify training in Collaborative Law to belong to the service, such that those coming to the site should be aware that these sites do not necessarily guarantee that the person being contacted is, in fact, fully trained in the process.

As such, while lawyers, financial professionals, or mental health professionals are free to use the service, if desired, those who are seeking to find someone to assist them in Collaborative Law may be advised to either search for practitioners under the IACP website, found here:

http://www.collaborativepractice.com/_loc.asp

Or, alternatively, search their local area for their State or Provincial Organizations who may have  a similar list of TRAINED collaborative professionals, which, for Alberta can be found here:

http://www.collaborativepractice.ca/find-a-professional/

Collaborative work is not easy, and it's not simply a matter of trying to be amicable.  Many practitioners have taken many hours of training, beyond simple interest-based negotiation - and those seeking out Collaborative Professionals are well advised to take care in seeking out the most qualified professionals possible.

Stu Web - Collaborative Visionary is Passing on the Torch

Well.

Today I received an email from Ron Ousky, via the amazing Collaborative Law Listserv, advising that tonight, in Minneapolis, Minnesota, there will be a retirement dinner in honor of the great Collaborative Law visionary, Stu Webb.

After giving so much of himself to give the world a new and better way to resolve legal problems, Stu is apparently passing the torch to the rest of us to continue the conversation, to the great benefit of so many people, particularly those struggling to resolve differences in Divorce and Family Law matters.

For an excellent description of where this process came from, best to hear it from the "horse's mouth" so to speak:

Tom Cruise and Katie Holmes - the Upside of Collaboration

Tom gets down off the couch,

and resolves his divorce in an amicable, sensible, fashion.

Go figure.

Well.

The tabloid dream.

This was the Tom Cruise/Katie Holmes divorce.

It had all the makings of a never-ending make-work project for the gossip magazines, didn't it?

The highest-paid movie star in the world, Tom Cruise, vs. Hollywood beauty, Katie Holmes.

The Catholic v. the Scientologist.

The demure young woman v. the couch-jumping crazed superstar.

National Enquirer, the Star, and CNN..  all the gossip rags were salivating over what was sure to be a nasty public bloodletting where all of the embarassing little secrets of what brought about the demise of the TomKat marriage would be finally exposed for everyone to see.

Except that's not what happened.

Yesterday, we hear that only 11 days after Katie Holmes filed for divorce, it was settled.

No lurid public hearings.

No public exchange of allegations and justifications.

Just an amicable, private resolution of their marriage dissolution.

How could this happen?  How could the public be denied the ability to cheer their good guy (or gal) on through months and months of public battles?

Well, apparently THIS is how:

"We want to keep matters affecting our family private and express our respect for each other’s commitment to each of our respective beliefs and support each other’s roles as parents," they said.

Really?

You wanted to keep your family matters private and express respect for each other's roles as parents?

You wanted your child to not experience, first hand, the trauma of a nasty and brutish divorce?

Go figure.

Now.

While the TomKat divorce was not, it appears, a formal collaborative divorce resolution, it does illustrate the great benefit of entering into a committed effort to find a solution, without recourse to the antiquated and uncertain litigation process.

Two adults, it appears, found a way to resolve their differences in a private process to their mutual benefit and to the great benefit of their child.

Well done.

Now.

Rest assured.

If someone had a good look at the details of the divorce, I can guarantee you that there are scores of hot-shot divorce litigators who would shudder at what was "left on the table".

Tom - you gave up parenting too quickly, you could have obtained a shared custody order - your settlement denied the validity of your faith as against the Catholic faith.. you should have fought to have your beliefs respected.

Katie - you could have leveraged the validity of the prenuptial agreement to obtain a more significant settlement.  And how could you possibly know that Tom had disclosed all of his income and assets without weeks and weeks of depositions and forensic financial analysis?

Sure.

And it might even be true.

Maybe Tom could have succeeded in obtaining an order preventing his daughter from attending a Catholic school.

Maybe Katie could have obtained more money.

But at what cost?

At what risk?

Are either of them going to be going to a soup kitchen anytime soon?

Would their daughter have been a happier child if her parents had argued over custody and religious education issues for months and months - only entrenching anger and bitterness between them?

Hardly.

This is the best example of what is possible if people put anger, pain, and greed aside, and put their child first, and put a value on privacy and speedy resolution.

This is the best example of why couples faced with divorce, like Tom and Katie, MIGHT want to look into the Collaborative Divorce process.

The Folly of Hiring Lawyers to be Mechanics

As a lawyer, it's my opinion that your car has a torqued-out bindle rotor..

I had a Collaborative file a while back, which, unfortunately, didn't work.

We moved through he parenting and property division like a knife through butter.

Child Support - no problems.

And then we came up against the alimony wall.

We did all the things we're trained to do.. we tried to focus the parties on the common elements of the discussion - avoiding the risk of litigation, understanding the need for both homes to have standards of living which would allow the children a similar experience with both parents.

We reviewed budgets, we discussed future needs.

We discussed how the parties felt about the issue of support and what roadblocks might exist which made it difficult for them to find compromise.

We reviewed BATNA and WATNA.

And, oddly enough, counsel was very close to agreement on those parameters - and the "most likely result" of a litigated outcome.

Husband was agreeable to compromise his position to accommodate the "most likely" outcome.

And, still, we failed to find resolution for our clients.

I reached out to other expert Collaborative counsel for advice - to no avail.

And, as a result, the Husband requested that the Collaborative Process be terminated - and it was - about a year ago.

So what happened?  Why did we fail to find a solution to our clients' needs?

Why did we spend thousands of dollars, and still find ourselves without resolution?

At the end of the day, it appeared that there was an emotional aspect to the discussion that we couldn't overcome.  The Wife perceived the Husband as abandoning his family for another woman, and Wife perceived that even with a 40% allocation of the parties' income, plus child support, the Husband's lifestyle would still exceed her own, having regard to the income of the Husband's probable future partner.

So.  Why am I sharing this "failure" on my part?

Well, if there was a failure on the part of counsel, it was, I think, in not fully understanding the depths of the Wife's emotional strain, and not pressing the parties to counsellors to address that aspect.

To be sure...  the process may well have still fallen apart.  But I think we made a mistake that I see fellow counsel grapple with quite often - which is allowing their clients to "save money" by not getting counselling where it is necessary to facilitate the process.

I've had this discussion with many other counsel to whom I have recommend the "team approach" of Collaborative Divorce.

The response I am often met with is, "It's difficult enough for my clients to pay me, let alone hiring two more professionals."

My response.  The job of a lawyer is like being hired to drive your client from Lethbridge to Medicine Hat, or Calgary, or Edmonton, or Grande Prairie.

It takes a while, the lawyer is hired to help their client navigate the journey through the laws and issues their clients encounter along the way.

We, as lawyers, take on that task, confident of our ability to drive the vehicle, to navigate the course, and to avoid collisions along the way.  This is what we do as lawyers - and we charge a significant fee for that effort.

Now.

Imagine that our vehicle has some serious mechanical problems.

We are not trained as a mechanic - we are trained as a driver.

So then...

You could hire a mechanic along the way to examine and fix underlying difficulties with the vehicle, at an hourly rate of about half of what you would charge.

Or.  You could just keep driving, but knowing there was a high probability that the vehicle problems were going to get worse. As the vehicle begins to break down - you could "band-aid" solutions, for which you have no training, charging your clients double what the mechanics charge for service which is, well, grossly inadequate to the task.

Which choice appears to be more economical, in the long run?

Speaking from experience in the file referred to above, we tried to use our legal skills to band-aid an emotional problem, and the, ultimately, the collaborative vehicle just died.

This could be you.

Don't be either blinded by the false economy of not hiring proper assistance, or your own false pride in your own ability to "fix a broken car."

Take the benefit of my mistake - and don't make it yours.

Collaborative Law - Get the Word Out

Collaborative Law..  lawyers practicing in the area are quite convinced of it's potential to help many families work out their legal issues in a relationship breakdown in a manner which is effective and respectful.

But, oddly enough, many lawyers who pursue a practice in Collaborative Law aren't the best promoters of the practice.  Being focused on finding the best solutions for their clients, they sometimes eschew spending time to publicly promote themselves and their practice relying, largely, on word of mouth of their clients to "spread the word".

Most clients, however, have nothing to judge their Collaborative experience against.  They haven't been divorced before, so they haven't had the pleasure of enduring months and sometimes years of litigation, including what might be fairly described as the legally sanctioned verbal flogging called pre-trial questioning and cross-examination in trial.

As lawyers, having seen the comparison first hand - we can often recommend to our clients the benefits of avoiding litigation where possible - but for the client, even going through Collaborative divorce may seem harsh and stressful.  So - their promotional benefits may not be as clear as we, as lawyers, might suggest.

So.

Then.

How important is it for lawyers to put their humility aside a bit, and to speak a little louder that, yes, we are here, and yes, we believe that Collaborative law and Mediation are processes that you should seriously consider should you find yourself in the midst of an unfortunate relationship breakdown, either in Divorce or the breakdown of a Common-law relationship.

For an excellent example of a colleague who has made the effort to promote not only her own practice, but the practice of Collaborative Law generally, take a look at Beryl McNeil's youtube post:

Legal Advice in Collaborative Divorce: Dangerous Minefield

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.

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?