A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

The Cost of Divorce in Canada 2015: five tips to reduce your costs

My very smart friend from law school, Anna Lund (LLB, LLM, PHD Candidate) tweeted an interesting article by Penelope Graham: “The Cost of Love in Canada 2015: $50,339.21”.

The article breaks down the cost of a romance in Canada: one year of dating, one year of engagement, a wedding and a honeymoon = $50,339.21.

This statistic is much higher than I expected. Naturally, the first thing I thought about is: what is the cost of divorce in Canada?

There are many expenses related to divorce and separation in Canada. Just some examples of the costs include: court fees, legal fees, fees to obtain documents, expert reports, specialists (such as a child specialist), counselling fees… and more recently the fees related to a divorce party (yes apparently there is Wikipedia page about this!).

Given the reported cost of an average romance, I can safely say that, in my experience, the cost of an average divorce is LESS expensive than the dating/marriage phase (although generally much less enjoyable!).

That being said, family law legal matters are still expenses (often prohibitively so).

From my practice, these are some tips you can do on your own to help reduce your costs in a separation/divorce situation:

  • Do the heavy lifting on the front end. Consider a cohabitation agreement, document things in writing (i.e. who is contributing what funds to family assets, how are family finances going to be dealt with and who is responsible for what if the relationship breaks down – in a form that is legally binding);
  • Gather information on your own. Of course, it is important that the information you obtain is from reliable and free sources (for example: JP Boyd’s family law blog, CanLII, Supreme Court of British Columbia’s website, Provincial Court of British Columbia website, Legal Services Society website). There is lots of information on the internet about separation and divorce and certainly not all of it is good. If you can get accurate and reliable information you will be in a better position to consider your options and ask your legal counsel strategic questions. I often tell my clients that if they cannot fall asleep because they are worrying about their family law case reading the Spousal Support Advisory Guidelines or the Child Support Guidelines is a pretty sure bet for sleep within a half hour. Being prepared and informed will empower you to feel better about your decisions and also reduce the cost of legal fees;
  • Consider some alternatives to court. (mediation, arbitration, collaborative family law). If both you and your former spouse can be reasonable and have appropriate professionals to help you deal with the contentious issues you can hopefully avoid a contested litigation;
  • Pick your battles. Don’t argue about things that are not cost effective. For example, is it worth paying a lawyer their hourly ($200.00 – $500.00+) rate to argue about kitchen utensils and Ikea furniture which is worth less than the cost of the lawyer’s time?;
  • Take advantage of free resources and options. For example, the Parenting After Separation Course, family justice counsellors, and the Family Maintenance Enforcement Program; and
  • Organize your documents. There are many necessary documents that will need to be exchanged in a family law proceeding. You can obtain and organize these on your own without the cost of your lawyer – your lawyer can review them once they are organized in a more efficient and cost effective way. I recall once when I first started practicing a lovely client brought three grocery bags of crumpled and coffee stained documents into my office for organization! I suggested that it would be much more cost effective for the client to organize them at home or to have my assistant help out for a few hours at a much lower rate. You can start filling out your financial statement before you visit with your lawyer. You can also order tax documents from the Canada Revenue Agency online and your own marriage certificate.

    Of course sometimes the divorce process is so stressful it is not realistic to take on additional work beyond getting through the day to day, parenting children and a busy work schedule – if that is the case, ask your legal counsel if there is a paralegal or assistant who can help you with some of these tasks at a lower hourly rate.

    The cost effectiveness of hiring lawyers to divide stuffies is a losing proposition...

    The cost effectiveness of hiring lawyers to divide stuffies is a losing proposition…

  • Family Law Arbitration

    Under the provisions of the Family Law Act (Section 8(2)) lawyers have an obligation to advise parties who consult with them about various dispute resolution options. One option for consideration is arbitration.

    What is Arbitration?

    Arbitration is identified in the Family Law Act (Section 1) as “family dispute resolution”: a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside of court.

    Family law arbitration is governed by the Arbitration Act. Section 2.1 of the Arbitration Act sets out specific requirements for an arbitration agreement in family law disputes.

    Arbitration is a private dispute resolution mechanism where parties, who have been unable to reach a resolution to an issue, agree to appoint an independent and neutral party (an arbitrator) to make a decision that is binding on both parties.

    From my perspective, privacy and control over the process are some of the significant benefits of arbitration. Parties generally do not have control of who sits in the courtroom watching the proceedings and hearing the evidence (for example a neighbour could be in the courtroom on an unrelated matter and hear your case as they wait for their case to be called). By contrast, in arbitration the parties decide who is to be present (and generally it is limited to the parties, their lawyers and the arbitrator). Additionally, parties and their lawyers can set the schedule of an arbitration to a far greater extent than they are able to in a court proceeding (in a court proceeding the trial list or docket list may be full and despite being prepared to proceed a hearing will be moved to another date on short notice).

    As described on clicklaw.com:

    “Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See “circumstantial evidence,” “hearsay,” and “testimony.” and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no evidence apart from helpful things like financial statements and with no formal rules of procedure.”

    What is Mediation/Arbitration (“Med/Arb”)?

    Med/Arb is a dispute resolution mechanism that is a variation of arbitration. The mutually agreed upon independent and neutral arbitrator starts out as a mediator but in the event the parties cannot reach a decision through mediation the mediator becomes an arbitrator and makes a decision that is binding on the parties.

    Further described on clicklaw.com:

    “In a med/arb process, the parties sign an agreement that commits them to the mediation process and describes what will happen if agreement can’t be reached. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phase. It’s really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.”

    Who can act as an arbitrator?:

    The qualifications for family law arbitrators are set out in the Family Law Act Regulation (Section 5).

    Where can I find an arbitrator?:

    Resources for arbitration:

    Without Prejudice: what does it mean?

    What does “without prejudice” mean and why is it on the top of so many letters my lawyer gets from my husband’s lawyer?

    A British Columbia Supreme Court decision released last week looked at the definition and meaning of without prejudice and applied it to the family law context.

    There are lots of differently worded definitions of “without prejudice”.

    I like to think of it generally as meaning:

    What happens in settlement negotiations stays in settlement negotiations.  A settlement offer cannot be brought up in court, put in an affidavit or used as evidence in proceedings (unless both parties agree).

    What makes something without prejudice?

    The Honourable Mr. Justice Cole cited a previous decision of the court, setting out the requirements for correspondence to be without prejudice:

    The words “without prejudice” are not necessary to invoke the privilege. The privilege is determined by the circumstances. There are only two requirements:

    1) A litigious dispute exists or is contemplated; and

    2) The purpose of the communication is to buy peace or effect settlement or respond to such a communication.

    So how does without prejudice work? Can you provide an example?

    Here is a hypothetical example – My husband are recently separated.  Our lawyers have organized a four-way meeting to see if we can resolve our disputes through negotiation.  At the four-way meeting we discuss two hotly contested issues: who keeps the family dog and who gets to stay in the Sunday running group.  I offer to give my husband the family dog  if he will agree to move to Fort McMurray (so I won’t  bump into him at the Running Room).

    We cannot resolve our disputes and go to court.  My husband tries bring up my earlier offer to give up the dog in court.   Lucky for me, this offer is not admissible in the court proceeding because it is made in a settlement negotiation.  Further, my husband could not use my offer to give up the dog as evidence that I did not want the dog or that I was a bad dog owner.

    Why do we have “without prejudice”?

    We have the concept of without prejudice to encourage settlement and the early resolution of disputes outside of the court process.  If offers people made to try and settle matters could be brought up in court, far fewer offers would be made.

    As a note, some feel that “without prejudice” is over used – and that if you make an offer it should be a reasonable one that you believe in.  My thought on this is that it is useful to have without prejudice discussions and offers, as it helps move things forward.  That being said, the phrase can be overused.

    Are there limitations to something being “without prejudice”?

    Yes, there are.  You cannot use “without prejudice” to get away with/hide from misleading the court or perjury.  As stated by Mr. Justice Burnyeat in the case of Berry v. Cypost:

    While it generally the case that the public interest in encouraging settlements will not be served by making without prejudice statements or documents admissible, I am satisfied that the overriding public interest to discourage perjury will not be served by protecting potential evidence of perjury behind without prejudice settlement discussions. In the words of Tysoe, J.A. in Greenwood, the protection of without prejudice settlement discussions was “… never intended to give protection to this sort of thing” (at p. 268). As was stated by the authors of “The Law of Evidence in Canada”:

    The privilege cannot be used as a means to deceive the courts as to the facts, by excluding evidence which would repel a charge of fraud made by a party or who is shown by the impugned communication to have effected a waiver or made an election (at p. 729).

    Additionally, a party can make their offer “without prejudice” except to costs.  As JP Boyd summarizes (in his 2009 blog on the topic of “without prejudice”):

    Proper “without prejudice” letters can’t even be put into evidence to argue costs after trial, unless the letter contains a statement saying that the author intends to reply on the letter for the purpose of arguing costs.

    Some helpful tips:

    1. Do not rely on something being without prejudice – it is important to make your intention abundantly clear at the beginning of a discussion (preferably record in writing that your negotiations are without prejudice.  You do not want to later end up in a discussion/court hearing focused on if your communication was intended to be without prejudice (there are better ways to spend your time and money);
    2. Check with your lawyer before you shoot off an offer (your lawyer will have useful feedback on the offer you are making and if it is an appropriate time to make it);
    3. Do not use disrespectful/offensive language even if you think that you are using it in a “without prejudice” context (you never know where the correspondence will show up – being without prejudice does not mean people cannot read it;
    4. If you make a demand it may not be considered without prejudice; and
    5. If you are not sure if something is without prejudice, ask your lawyer.

    Some additional reading:

    1. Without Prejudice vs. Solicitor Client Privilege (Christelle Vaval);
    2. What’s Without Prejudice and What’s Not (JP Boyd); and
    3. Sopinka, Lederman and Bryant, The Law of Evidence in Canada

    Obviously I would never offer to give up the family dog!

    Parenting: Can we Travel to Disneyland?

    An Alberta couple recently spent several months fighting about if the mother could take the child of the relationship to Disneyland.

    How hard is it to get the the "happiest place on earth"?

    In the case of Vervoorst v. Parker, Ms. Vervoorst requested, in October 2011, that Mr. Parker sign a travel consent so she could travel with the parties’ five year old child to Disneyland, in April 2012.  The parties had a number of disputes about the travel consent and, this led to a court application and a written decision of Justice Lee.   Justice Lee ordered that the mother could take the child to Disneyland and dispensed with the requirement for the father to sign a written consent.

    Question: After separation, do I need the consent of the other parent to travel with my child outside of Canada?

    I get asked this question quite often.  Generally, the answer is yes, you do need the consent of the other parent to travel outside of Canada with a minor child.

    I know of some people who “take a chance” and cross international boarders without written travel consents of the other parent.  This is not a good idea.  The last thing you want, for example, is to be trying to drive across the US boarder on a long weekend and be stopped. 

    Do you remember the episode of 90210 where Dylan and Brenda go to Baja and she gets stopped at the boarder?  The other parent is probably going  to be equally annoyed as Jim and Cindy Walsh if they have to come and bail you out at the boarder…skip to minute 7 of the video.

    Question: What kind of consent do I need? What form should the consent take?

    If you are travelling outside of Canada with minor children, it is best to have written consent in the form suggested by the Department of Foreign Affairs and International Trade Canada.

    Travel consents are quite easy to prepare – you can likely prepare one yourself and then go to have your lawyer review it and provide you with any legal advice and recommendations necessary.  

    You can find the link to an interactive consent form on the Foreign Affairs and International Trade Canada website.

    The website also provides some general guidelines about travelling with a child:

    Since every situation is unique, we recommend that you talk to a lawyer for advice on what your child will require, particularly if your parenting arrangement has special terms governing international travel.

    Carrying a consent letter cannot guarantee entry, as permission to enter another country is entirely the decision of that country. A consent letter may be required by foreign authorities, in addition to other country-specific entry requirements. You should contact the representatives of the country or countries to be visited by the child to ensure that you have the most up-to-date information regarding specific entry requirements.

    We strongly recommend that you have the consent letter certified, stamped or sealed by an official who has the authority to administer an oath or solemn declaration, e.g., a commissioner for oaths, notary public or lawyer, so that the validity of the letter will not be questioned. Note that regulations concerning the administration of oaths fall under provincial/territorial law and are not determined by Foreign Affairs and International Trade Canada. Furthermore, it is up to each official/individual who witnesses such a letter to decide what proof he/she needs to see to be able to witness/sign the letter. An official should only witness/sign a letter of consent if he/she is convinced that the individual requesting the letter is who he/she claims to be and that adequate proof has been provided.

    We also recommend that you contact the transportation company (airline, train, bus, etc.) in order to observe any additional policies they might have in place.

    There is also more information available about children and travel on the Foreign Affairs and International Trade Canada website.

    Question: What are some tips for approaching the other parent to get consent?

    Generally, the easiest and cheapest way to proceed is to make reasonable agreements between parents about international travel arrangements.  An example of this would be:

    1. Inform the other parent, in writing (for example a friendly e-mail) about your travel plans, including: the specific dates you are proposing to travel, where you are going, and who you are going with and how they will be able to contact the child while you are travelling – ideally this would be well before the proposed travel (ideally 6 months to allow for flexibility);
    2. Obtain the other parents agreement to your travel plans and make adjustments if necessary (for example, we have grandma’s 100 Birthday celebration that week – could you go on vacation the next week?).  Ideally you would get the other parent to consent to the travel itinerary before you book your trip;
    3. Once you have obtained agreement for your travel plans, discuss with your lawyer what consents and special arrangements are necessary (for example, a trip to China will have different requirement than one to Disneyland and the requirements if you have sole custody might be different than if you have joint custody);
    4. Send the other parent the required consents and request, politely, that they sign them and return the originally executed documents to you within a reasonable time (for example two weeks); and
    5. Once the travel consent is signed, provide a copy to the other parent for their records.

    Generally, being reasonable, ensuring that you have proper lead time, and respecting the other parents requests for travel dates will help you stay out of court on the matter of travel consents.

    Question: What if the other parent unreasonably refuses to consent?

    In certain situations, the Court may make an order dispensing with the requirement for written consent to travel (either for one trip or for all travel outside of Canada), for example in one case, the court made an order for both parents to travel outside of Canada with notice to the other parent, but not specific written consent:

    In addition, the plaintiff has raised the issue of Kevin’s passport. The plaintiff requested that the defendant sign Kevin’s passport but on the last day of trial he had not done so. While the defendant asserted at trial that he has done so and will remain in contact with the plaintiff so that he is available to sign for its renewal in the future, the defendant’s communication and cooperation with the plaintiff to date has been sporadic. As a result, I will also make an order that the plaintiff will be at liberty to apply for Kevin’s passport without the defendant’s consent for the purposes of s. 7(2) of the Canadian Passport Order, SI/ 81-86Slater v. Slater,2002 BCSC 552 (CanLII), 2002 BCSC 552.  The plaintiff is required to notify the defendant that she is making such an application. Furthermore, she does not require the defendant’s written consent to travel abroad with Kevin, however, the plaintiff is required to give the defendant 48 hours’ notice of any intended travel with Kevin.

    With respect to the defendant, he may also travel with Kevin without the written consent of the plaintiff, however he must provide 30 days’ notice along with travel and contact information 48 hours in advance of departure and is required to return Kevin’s passport to the plaintiff forthwith upon their return.

     

    Mediation: what to expect and how to prepare

    Lots of people consider mediation as an option to work toward resolution of their family law matter without knowing exactly what to expect from the mediation process.  Is this what mediation is going to be like?

    No – it is unlikely that your mediation will be like a scene from the Wedding Crashers.  The mediator will  not sing songs played at your wedding – or even ask about your wedding (note – if you do have a story about a mediator singing in your mediation please feel free to share!) and the mediators probably will not look like Owen Wilson and Vince Vaughn…(once again, please feel free to share).  Like the video from the Wedding Crashers, mediators will often refocus and reframe the negative to work towards a constructive resolution of issues between you and your spouse.

    In preparing for a mediation, there are lots of resources available on the internet and at the public library that can help you prepare for mediation and supplement the information your lawyer provides to you, as discussed below.

    Deborah Lynn Zutter‘s book, “Divorce Mediation: What You Need to Know“, sets out the general process to expect for a mediation (although mediation practices differ based on the mediator and the parties’ needs):

    • Once the parties agree to a mediation they will contact a mediator to determine who is appropriate to mediate their case;
    • The parties will mutually select a mediator;
    • The mediator will meet with both spouses (usually independently of each other) for an initial meeting to review and sign an agreement to mediate with each spouse;
    • The mediator will have one (or a series) of mediation meetings with both spouses and their lawyers (if the spouses choose to involve their lawyers);
    • The mediator may create a summary after each meeting to record decisions that have been made or points that have been brought up by both parties;
    • Once the mediation is concluded, if an agreement is reached, a document setting out the terms of the agreement will be drafted – either by the mediator, the parties, or their lawyers;

    A detailed description of the mediation process can also be found on JP Boyd’s website.  JP Boyd’s website also has a useful list of things to do and things not to do in mediation. I guess the parties in the Wedding Crashers missed this one:

    • Negotiations are stressful, but don’t use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective.

    The Ministry of Justice has a useful question-and-answer guide to mediation, including a summary of how to prepare for mediation:

    Think about some important questions before you go to the mediation, such as:

    • What is the best outcome that you could reasonably hope for?
    • What is the worst outcome you should prepare for?
    • What are you most concerned about and what can the other person do to respond to those concerns?
    • What is the other person most concerned about and what can you do to respond to those concerns?
    • What are your options if you do not reach a settlement in mediation?