Process, Process, Process... the most important issue in family law
After practicing family law for over fifteen years it has become clear that the most important question in family law is process. How do you get where you are now to where you want to be which is with a signed separation agreement? This is the most important question in family law. Once this process question is answered the substantive issues e.g. children, assets, income, will be resolved within that process.

 All of my files use one of the processes described below to achieve resolution.
 1. Proposal      2. Mediation      3. Collaborative Family Law
4. Five way settlement meeting       5. Court. (Last resort)
 
 1. Proposal
One party creates a proposal for review by the other party. If the proposal is acceptable then a separation agreement (in court the document is called Minutes of Settlement) is created. It is signed and the parties get on with their lives. This sounds wonderful but caution is advised.

If you make a proposal do you put your best foot forward? Or, do you put forth something you hope the other party will accept or that you know the other party will not accept and you wonder what the counter-proposal will be? It can become a game - a very expensive, divisive game which can have potentially disastrous results.

The risk is that it is not very often that proposals are accepted by the other party. I have seen clients make a proposal that they feel is reasonable to their spouse. Their spouse reacts with indignation and says, "that is a terrible proposal - my spouse is unreasonable. I can not negotiate with that person so I have to go to court".

That is one thing that has changed over the years I have been practising - no clients want to go to court anymore. They have heard the horror stories and know that only lawyers benefit from court. I am not a fan of the court process. In the vast majority of cases, there is no need to go to court. So, what we want to be careful about is having one party provide a proposal which results in the other party feeling like he or she has to go to court.

Proposals are also dangerous because they can make people dig in their heels. I had a file where my client the husband offered to rollover a sum of money in his R.R.S.P. to the wife in exchange for a waiver of spousal support. When she received the proposal she fired her lawyer. She hired a new ‘litigation’ lawyer at $400.00 per hour.. A court application was commenced. Tens of thousands of dollars were spent (or wasted) in legal fees. A year and a half later a resolution on the eve of trial was achieved. Neither party was happy with the result. When I netted out the result, only the lawyers won - both clients lost. Be careful about making proposals - it may be a good idea for your file but I have seen it backfire.

So, clients are thinking if making a proposal is not an option for me and I do not want to go to court then what do I do? The answer is have a meeting. Good things happen when people sit down together in a safe environment, with someone who knows what they are talking about and discuss the issues in a civilized and dignified manner. Whoever goes to the meeting has to listen - really listen. The only question for me is who goes to the meeting?

Top Page
2. Mediation
 Second, there is mediation. Both parties attend mediation with one professional. It is important to pick the right mediator. It is an unregulated field. Anyone can call themselves a mediator. I have seen the worst agreements come out of some mediations - because the mediator is not qualified. Do you want someone who was divorced two years ago, has no training but now ‘knows it all’ assisting you or a competent trained person with over 15 years of experience?

We are now offering mediation services and I would be happy to discuss this option with you.
3. Collaborative Family Law or C.F.L.
Third, there is Collaborative Family Law or C.F.L. This is a relatively new concept. It was created by a mediator. He found that on occasion the mediation process would break down at the independent legal advice stage. The parties attended the mediation. They reached an agreement in principle. An agreement was drafted. Both parties meet with their independent lawyers to review the agreement. A problem arises at this stage and the parties are back to square one.

This is a relatively new concept. It was created by a mediator. He found that on occasion the mediation process would break down at the independent legal advice stage. The parties attended the mediation. They reached an agreement in principle. An agreement was drafted. Both parties meet with their independent lawyers to review the agreement. A problem arises at this stage and the parties are back to square one.
What if both lawyers were involved from the beginning? What if both parties received advice on the spot? Would this make for a better process?

In C.F.L. (see links section for further information) the parties and lawyers work together instead of against each other. If a court application is necessary because settlement was not achieved then the parties have to get new lawyers. This deals with the perception that lawyers create problems to run up their bills. If lawyers only get paid to settle files then this potential conflict does not exist.

To be a C.F.L. file both lawyers must be members of the C.F.L. panel. Darrin is a member of the panel. If the other lawyer is not then we can still have a four way meeting.

 Top Page
4. Five way facilitated settlement meeting
Five way facilitated settlement meeting. This is a cumbersome title but it is the best I have come up with to date. Both lawyers and both clients attend a meeting chaired by a mediator.

I know - to clients this sounds expensive. The answer is - it depends.

Mediators want a consultation with both parties in advance, then there will be one, two, three or more sessions, then an agreement is drafted and the agreement is reviewed by two lawyers with their respective clients. There may be changes to the agreement.

Collaborative Family Law usually requires two meetings - sometimes more.

A five way meeting is a one time event. We set it for several hours. We all have all of the information we need. We go and listen to each other and come up with an agreement that we can all say yes to. We sign it that day.

Top Page
5. Court. (last resort)
 No-one wants to go to court. It is expensive, lengthy and adversarial. It hurts children. It destroys relationships between spouses. You are not in control as a Judge makes a decision. It is public. In contrast, any of the processes above is less expensive, faster and collaborative. The children’s interests are protected. The relationships are preserved. The parties are in control as they make decisions. It is a private process.

It is not hard to see why clients do not want to go to court. Family court is an anachronism. In the vast majority of cases, it is not the appropriate forum to resolve family law issues. That being said, it will always be needed for some files. Hopefully, you do not have one of those files. If you do then we also offer that service. If you do have to go to court then we will be as efficient as possible and use the strengths of the court system to your advantage.

The first appearance in court is called a case conference. The goal at the case conference is to ensure that disclosure (paperwork) has been exchanged or will be exchanged and to narrow the issues. There are several courtrooms in Ottawa every day dealing with case conferences. There is a list at 10 a.m. and a list at 2 p.m. If you are the third matter on the list then you wait your turn and appear in front of the Judge or the Master - you get about 15 to 30 minutes depending on the day. The presiding Judge does not have jurisdiction to make a substantive order at the case conference. The idea is that you go see the Judge, see what he or she says about the issues, then go out in the hallway and cut a deal.

The second appearance is a motion - which usually follows the case conference but is not mandatory. At this appearance a Judge has the jurisdiction to make a substantive order but only on a temporary basis. An order made on a motion only lasts until the final order is made at trial.

The next appearance is usually a settlement conference. It is similar to a case conference but all of the information is available, if the motion is to occur it has occurred and you get more time with a Judge e.g. usually one hour.

If the matter does not settle then it is placed on a trial list. There are trial blitzes set every couple of months e.g. two week period. If you are number 14 on the list then the court calls in 1 to 13 and when they are ready for you they call you in. Sometimes you only get a couple of hours notice. The applicant proceeds to call witnesses and evidence. The respondent replies. The Judge makes a final order. The final order can be appealed.

There can be multiple case conferences, motions and settlement conferences. There are sometimes urgent motions brought before case conferences. There are other potential steps e.g. questioning where a party is asked questions under oath. In the United States they call this depositions. You have to pay the lawyer to go. You have to pay to rent the space as this is done privately. You have to pay the reporter to produce the transcript.

If you see dollar signs flashing before your eyes you are correct - this is an expensive procedure and one that should only be used as a last resort.

Top Page

 

Clayton Law Office 2571 Carling Avenue, Suite 207 Ottawa, Ontario K2B 7H7. Telephone: (613) 596-2424