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…

  • High Conflict Parenting: Must Read Case

    Each weekend I like to review the recently reported decisions from British Columbia and Alberta. They are available online at the Supreme Court of British Columbia website and the Alberta Court of Queen’s Bench website (via CanLII).

    This Saturday (while I was getting my hair done) I came across a “must-read” decision of the Honourable Madam Justice D. L. Pentelechuck from the Alberta Court of Queen’s Bench: A.J.U. and G.S.U. (2015 ABQB 6) (“AJU”) (NOTE/CAUTION: People do laugh at me when I come into the salon with a stack of recent court decisions and highlighters).

    The AJU decision “offers an opportunity to consider the role that Court-appointed Parenting Experts play in the determination of the best interest of children, and the evidentiary standard to which the parties should be held in a custody dispute.” (paragraph 3).

    In the AJU case, Justice Pentelechuck considers a situation where the father sought sole custody of the parties’ two daughters and the court appointed parenting specialist supported his claim in an assessment report which recommended that the father have sole custody of the children. At first blush this might seem like a strong case for the father – his position is supported by an expert.

    From my perspective, this case is an illustration of the importance of critical and objective review of the evidence and allegations put forward in parenting disputes. In this case, while the father initially may appear to have a strong case (supported by an expert report), throughout the trial, counsel for the mother, Renee R. Cochard Q.C., illustrated – both by objective evidence and cross examination of the parenting expert and father – that the report was flawed and the criticisms of the father towards the mother’s parenting time were without merit. This written decision highlights the importance of (both counsel and the parties) carefully reviewing the evidence and allegations forwarded in parenting disputes. Ms. Cochard’s successful cross examination of the Parenting Expert diminished the persuasive value of the expert report that was before the court.

    By way of example the father “takes issue with [the mother’s] purchase of a trampoline, and also objects to the girls’ participation in horseback riding, and tubing down the Pembina River with their mother.”
    The Justice did not find validity to this concern and noted that “The Trampoline in question is an 18” high “Dora the Explorer” trampoline” (paragraph 55) and “None of these complains, individually or collectively, have merit” (paragraph 57).

    Further, in regard to the report of the Parenting Expert, the court noted: “First, the basis for her recommendations were seriously undermined during cross-examination” (Paragraph 96). For example, the Parenting Expert noted in her report that the children appeared to be getting sunburnt during the time she observed them, however, during cross examination the parenting expert “admits she did not confirm whether or not the girls actually suffered sunburn on that particular day” (Paragraph 97). Another example of the erosion of the validity of the expert report at trial was that the expert alleged that the mother did not follow-through on educational matters. However, cross examination exposed that the expert “did not see the educational centre [the mother] had in the basement.”

    This case is a good read if you are going through a high conflict parenting dispute and there are expert reports and/or evidentiary issues. The court provides a review of expert evidence (starting at paragraph 132), hearsay evidence (starting at paragraph 135), illegally obtained evidence (starting at paragraph 151), and lay opinion evidence (starting at paragraph 170). Counsel, self-represented litigants and parties to parenting disputes will benefit from reading this case.

    Dogs

    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:

    Ex Parte Orders… This has nothing to do with partying with your ex…

    Except, perhaps, in the case that you are trying to get an injunction to prevent your ex from talking about your potentially embarrassing behavior – like in the case of Party Av. Party B in which Party A successfully obtained an ex parte order preventing his former partner from disclosing the details of their affair, as follows:

    The appellant is a married businessman. The respondent is an unmarried businesswoman. The two engaged in an affair which was ultimately terminated at the instance of the appellant. During the course of the affair, the parties engaged in activities, the details of which the appellant would prefer to keep undisclosed.

    After the affair ended, the respondent made public disclosure of many aspects of the parties’ activities. The appellant commenced an action against the respondent alleging breach of confidence and breach of the Privacy Act, R.S.B.C. 1996, c. 373, by the respondent. He sought an ex parte order to restrain the respondent from further disclosure, and on May 9, 2011, his application was heard, in camera, and an order was granted against the respondent by a justice of the Supreme Court (the “First Justice”) including the following terms:

    1. This Order orders you, among other things, to cease and desist from publishing or disclosing the Private Information as defined below

    2. You are at liberty to apply to this Court to set aside or vary this Order upon giving two (2) clear day’s notice to the Plaintiff’s solicitor of your intention to do so.

    3. If you disobey this Order you may be guilty of contempt of Court and may be sent to prison, or fined, or both.

    THIS COURT ORDERS that:

    4. The Defendant, by herself or by her employee, agents, or otherwise, and any other person with knowledge of the terms of this Order, be and is hereby restrained from disseminating, publishing, or otherwise disclosing any private information about the Plaintiff, his sexual practices, or anything that would connect him to having had a sexual relationship with the Defendant (the “Private Information”), until the trial or other disposition of this proceeding or until further Order of this Honourable Court…

    Ex Parte (Latin meaning “from (by or for) one party”) are orders obtained on the application of just one party in a court case, without notification to the other party/parties.

    In British Columbia, we have dropped the Latin and now call them “orders without notice” in the rules of court.

    Applications without notice should only be brought in extraordinary and emergent circumstances and the party bringing the application must explain to the court why it is not possible to provide notice to the other party. The duration of the order is generally to be made for a period sufficient to give the other party notice of the order and schedule a full hearing.

    The party bringing the application without notice must also make full disclosure of all of the relevant and material facts relating to the order they are seeking (both for and against their case). Failing to make such frank disclosure may result in the order being set aside or an order of special costs being awarded against the person obtaining the order (for example in this case). Further, failure to make full and frank disclosure can tarnish your credibility in future proceedings before the court. For example, in one case, the court stated:

    This evidence of the father lacks believability in this regard as does his justification for obtaining the second ex parte order.

    In the Supreme Court of British Columbia orders without notice can be brought pursuant to Supreme Court Family Rule 12-4(3).

    Supreme Court Family Rule 10-9(8) provides that an order without notice can be varied or set aside on the application of the other party to the litigation.

    In the Provincial Court of British Columbia an order without notice can be made under Rule 20(3) of the Provincial Court (Family) Rules. There are other rules in the Provincial Court Family Rules that give Judges discretion in extraordinary circumstances: Rule 5(8) allows for Provincial Court Judges to make court orders without following regular Registry procedures and Rule 12(2) provides for a Provincial Court Judge to dispense with service requirements.

    In family law cases orders without notice are often made for three purposes: 1) personal protection and protection of children (including preventing children from being relocated without consent); 2) protection of property; and 3) exclusive use of property.

    A review of 2013 decisions in British Columbia shows that recent ex parte orders without notice have also been granted for a number of other reasons, for example:

  • spousal support (paragraph 20 – order made in 2008);
  • custody and access (paragraph 3); and
  • access to records (paragraph 14 – order made earlier than 2009).

    Divorce Cartoon

  • Common Law Relationships: Bressette v. Henderson

    The Honourable Madam Justice S. Griffin recently gave reasons for judgment in the case of Bressette v. Henderson addressing the important question:

    Does the Family Law Act (the “FLA”) apply to common-law spouses whose relationship started and/or ended in the two years immediately prior to the FLA coming into force?

    The reason that this question matters, in short, is that the application of the FLA to certain common-law relationships could result in a totally different division of property for spouses than would otherwise occur if the FLA did not apply (for example, one spouse might get half of all family assets if the FLA applied to their relationship but very little if the FLA did not apply).

    Prior to the FLA coming into force, common-law couples in British Columbia were unable to apply for property division relief under the Family Relations Act (the “FRA”), the statute that provided for property division upon the breakdown of a marriage.

    Instead, common-law couples were limited in the remedies they could seek for property division. As Madam Justice Griffin succinctly summarizes:

    The common law has developed tools to assist unmarried partners in making claims to property held in teh name of the other partner after the relationship breakdown. These tools, under the usual description of unjust enrichment and constructive trust, are an attempt to achieve fairness in the division of property to which both parties had contributed directly or indirectly, but which, for whatever reason, ended up registered in one party’s name alone.

    The tools that common-law spouses were limited to bring claims under, prior to the enactment of the FLA, often create issues in determining the proper remedy for property division and in determining what the appropriate proportionate share of assets should be for each spouse: essentially the results of application of unjust enrichment and constructive trust remedies to property division are difficult to predict.

    The FLA provides more certainty for division of property upon the breakdown of a common-law relationship. Under the FLA generally the starting point for property division is an equal division of family property and family debt.

    In order to bring a property division action under the FLA, a common-law spouse must start a proceeding for property division under the FLA no later than two years from the date of separation. Effectively, if you were in a common law relationship and separated earlier than two years before March 18, 2013 a claim for property division under the FLA will be barred by the passing of the limitation period.

    There are transition provisions in the FLA that deal with some of the issues arising from the coming into force of the FLA, but they are unclear on the application of the FLA to the rights of common-law spouses who broke-up in the two years immediately before March 18, 2013.

    Justice Griffin states:

    A decision on the transition provisions will have significant implications on the rights of common-law spouses who separated within two years of the FLA coming into force. One can imagine all kinds of variations in circumstances: those whose relationships straddled the FLA, starting before but not ending until after the FLA came into force; those whose relationships ended and who obtained a decision in litigation over their property rights or who reached an agreement with the other unmarried spouse all before the coming into force of the FLA; and those whose relationships ended, but who remained in active litigation and had not resolved their property dispute before the coming into force of the FLA. There are arguments available for different treatments of these various circumstances.

    Justice Griffin specifically did not make a determination in the application of the FLA to the Bressette and Henderson relationship stating:

    Unfortunately, I do not feel that I have had the benefit of as full a legal argument as is necessary to resolve the issue of whether or not the property provisions of the FLA apply to these parties… I am concerned about deciding the issue of the applicability of the FLA in the absence of full legal arguments.

    These issues will likely be determined before the courts in the coming months and years. While she does not make a decision in regard to the applicability of the FLA to common-law couples who separated between March 2011 and March 2013, Justice Griffin does make a comment on the issue (a comment I agree with): “Here, if the FLA was applicable to these parties, it would be “significantly unfair” to reach a different result than that based on the unjust enrichment remedy, given that the common-law remedy is based on fairness and the legitimate expectations of the parties. Here the parties never considered or expected that there would be a new statutory regime applicable to the relationship during the course of the relationship.”

    Family Court: go and watch

    Almost every client I have who has not been to court before – and is considering bringing a court application or starting a court action – wants to know what is going to happen during their time in the courthouse.

    When I am asked the question “what is court going to be like” my usual answer, after giving a general explanation of the court process, is: “go and check it out to see first hand…admission is free”. The public can watch proceedings in the British Columbia Supreme Court and British Columbia Provincial Court on most weekdays.

    In British Columbia there are certain proceedings that are closed that are closed to the public (i.e. you cannot watch them without permission from the court). For example, you will not be able to watch Judicial Case Conferences and cases that have publicity bans. The majority of cases, however, are open to the public.

    If you would like to go and watch court, to get an idea of what it is all about, you can find the Court Registry in your region online.

    If there is a specific case you want to watch, a specific Justice, Judge or Master you would like to see or a specific type of proceeding that you would like to learn about, you can find the court room and time by looking at the Hearing Lists online.

    Often the most useful proceedings to watch, if you are involved in a family law case, are family law chambers. During family law chambers you will usually be able to see a number of different types of issues being dealt with (for example child support, spousal support and parenting time) in one morning. You will also get the opportunity to see a number of different lawyers arguing different cases.


    Avoid not knowing what is going on… go and spend a morning at court