My website provides a good introduction to family law issues such as, custody and access, child support, spousal support and property division. More importantly, it discusses the process in resolving family issues which arise from separation.
I offer a free 30 minute consultation to help answer questions with the objective of resolving the questions that arise from separation. As I see it, the objectives in resolving a separation should be:
- To reduce the impact of separation on children.
- To keep the money “in the family” and not spend it on the lawyers.
- To respect the law regarding support and division of property.
This should be done cooperatively in a perfect world. While this may be “hard emotionally”, this should be the objective and goal of the spouses. That is how I see my role as a family lawyer: to assist parties in resolving issues. Most family lawyers agree with this statement.
My website offers general information on the specific issues that are usually addressed in the context of a family law dispute. This information is general in nature as most cases are distinct and require careful analysis by a lawyer.
Our firm brings a common-sense approach to the issues. Our objective is to ensure that the settlement process is as efficient and cost-effective as possible. This will depend, more often than not, on the spouses’ willingness to cooperate.
My view is that the client should:
- Be actively involved in understanding his/her case;
- Provide the required information that will promote settlement;
- Use professionals, as recommended, to deal with various issues (such as actuaries, parenting coordinators, financial advisors etc.).
I have been practicing law for over 29 years. In my view, the best settlement is achieved through open and honest negotiations and through lawyer-assisted mediation. I have found that when difficult and emotional issues are approached in a civilized way, matters can be resolved quickly and fairly.
The more difficult cases are those when there is little cooperation between the spouses,- reluctance to understand the law and reluctance to provide financial disclosure. The role of the family lawyer is to manage expectations and define those expectations. I have no interest in “prolonging settlement”. Much of my client base comes from referrals. It is therefore best for me to provide straight forward advice and work cooperatively with the other spouse’s lawyer.
The most important question in cases of separation is: how does one resolve the issues raised by the family breakup? Court should be the last resort. To avoid Court, both parties must be open-minded and negotiate in good faith.
The approaches to resolving issues are:
a. One can only negotiate properly when all facts are known: children issues, incomes, roles of parties during the relationship, value of assets, pensions etc.
b. To properly negotiate, both parties must provide the required information to allow sound and logical offers to be made.
c. If an agreement is reached, a separation agreement (contract) is then entered into.
d. Negotiations work only if they proceed in good faith with all the information made available that is relevant to the case. Bad faith or resistance will not help that process.
e. This option (negotiations) may require meetings between the parties and their lawyers.
a. Mediation is another option.
b. Both parties attend mediation with one professional. The difficulty with mediation is that you need to pick the appropriate mediator. This is not a clear area of practice. I have known many lawyers who have conducted mediation without proper credentials and mediation may not, in such a case, produce a fair settlement.
c. Some mediators do not have law degrees and simply do not properly understand the law. Over the years, many of my clients have seen mediators and then consulted me afterwards, to discuss the terms of a potential agreement to learn from me that; the pensions were not valued, the income of a self-employed spouse was not determined, properties not valued properly, tax issues were not considered.
3. Five-way facilitated settlement meeting
a. My preferred approach is lawyer-assisted mediation which is where the parties each have a lawyer and attend mediation presided by an experienced family lawyer. In my experience, most files approached in this matter produce a settlement. This course of action can be taken at any point: while the parties are in negotiation or while the parties are involved in a court proceeding.
b. This approach is favored by the Judges. c. I have found this to be the best resolution mechanism. Both lawyers and both clients attend a meeting chaired by a mediator.
c. There is a cost to all approaches.However, the 5-way facilitated meeting usually produces a settlement; The lawyers and the parties are prepared; There are no time limitations. Clients can “take breaks” as required during the process.
a. Court may be an option when there is no cooperation or where delay in negotiations will affect the rights of a party (ies).
b. While no one “wants to go to Court”, there may not be an option. The positive aspect of Court is that it forces, as a rule, parties to negotiate fairly and disclose proper information because Judges will impose such decisions and set timelines.
c. In my experience, Court Applications remain important in family law if only to compel parties, in some cases, to face the issues realistically. Judges will often suggest to the parties to enter into some form of mediation during the litigation process. The Judges often notify litigants that their expectations are not rational or reasonable.
d. However, that process is expensive and very adversarial. It is also public. The spouses do not have control over the process as Judges make decisions. The process is lengthier than negotiations and lawyer-assisted mediation.
e. I must sometimes advise clients to commence a Court Proceeding to compel the other spouse to negotiate fairly and disclose all the information required by law. Court is not my preferred route of resolution but, it is there depending on the case.
6. Memo from Court
a. Of interest, I attach a memorandum dated 2006 by Justice Metivier encouraging spouses in a Court Action to negotiate and mediate. (PDF)
b. There are many steps in a court application:
i. The first appearance is called a case conference. The objective is to ensure that financial disclosure has or will be exchanged. As a rule, such an appearance will last 15 to 30 minutes. The presiding Judge does not have jurisdiction to make Orders of importance.
ii.The second court appearance is a motion. This is a pre-trial hearing where the Judge has the “power” to make various temporary Orders such as interim support, interim custody arrangements, sale of the home etc. The Order is usually temporary and lasts until Trial or settlement by the parties.
iii. This is followed by a Settlement Conference (Pre-Trial). At this stage, a Judge will give an opinion on the issues and how those should be resolved.
iv. If the matter does not resolve, your case is placed on the Trial list. There are generally 4 family Trial sittings per year in Ottawa. When your matter is placed on a Trial list, it can take, as a rule, from 6 to 18 months to make it to Trial.
v. There may be other steps. Full litigation can take from 1.5 to 3 years and longer.
7. In my experience, litigation should be the last option. However, we must answer the question: why would one commence litigation? Some reasons are:
a. A spouse has an obligation to pay monies to the other (property and/ or support) and refuses to comply with his/her obligation;
b. No reasonable arrangements can be made regarding the children;
c. A spouse is hiding or depleting assets;
d. There is abuse;
e. There are mobility issues (a parent wishes to move away); and The Court system and the wisdom of Judges are most helpful in such situations and their direction usually helps promote settlement before the matter reaches Trial.
8. Marc Coderre, family lawyer, Orleans, Ottawa
a. I can guide clients through these most difficult times;
b. The successful resolution depends on the level of cooperation between the spouses, the motivation of the spouses to negotiate in good faith, their ability to make fair compromises when required, and identifying and managing their expectations.