21 March 2017

A "NO FEAR" FAMILY LAW PRIMER

It seems everyone I know is getting divorced. I know statistically that's not really the case. That really only about 1 in 3 marriages end in divorce, not the 1 in 2 stat commonly thought of due to skewed numbers created by pent up demand shortly after no fault divorce became legal. But in thinking about why divorce dominates the social conversation, I've come to the conclusion that it all comes down to one word: fear.

Fear of losing custody of children. Fear of losing homes and other possessions that were only acquired through many years of hard work. Fear of losing everything that one holds dear.

As a family law lawyer, I believe at the root of that fear is fear of the unknown. Fear generated by believing legal rumours spread by your soon to be ex-spouse. Fear from friends telling you legal stories about extreme cases that they’ve read about, or heard of from friends of friends of friends.


While family lawyers perhaps can’t offer “cures” as readily as doctors, what we can offer is a cure from fear. We can exorcise those fear demons. 

I often can’t predict results in other types of non-family legal disputes because of the complexity of the law. But family law results are usually quite predictable, regardless of whether you spend a little or a lot on legal fees, because the “law” part of family law is quite simple (it’s the factual “family” part of the two word equation that gets complicated). 

I’ve got a top three family law likely outcomes for you, and a top five tips to maximize resolution results and minimize costs. Between them, they’re a start to taking away the fear.

TOP 3 FAMILY LAW LIKELY OUTCOMES

1. Shared custody - Custody will probably be shared if that is what the parents want, with no child support being payable. There are exceptions, but you may have a major fight on your hands to convince a court to give you an exception because of the fundamental principle that the best interests of the child involve maximizing contact with both parents. 

Even where child support is payable, it will be according to a fixed table amount created by the legislature. Plug in numbers of children and parental income, and it spits out a number. Simple. What are known as "special and extraordinary expenses" - dentist, soccer, summer camp - are split as a percentage between the parents according to their respective incomes, even where no child support is being paid. 

2. Equal split of property - Matrimonial property will be split evenly, except for property that was brought into the marriage. Again, there are some exceptions, but for long term relationships, splitting things down the middle is the norm since usually most of what couples have was acquired jointly, or at least shared jointly. Owning a business could introduce some complexity to this split, especially where both spouses have involvement in the business. 

3. Spousal support depends on income disparity and length of relationship - Spousal support will only be payable where there is significant income disparity, and then only for about 3 years, unless it is a long term relationship in which case lifetime support may be payable, subject to a change of circumstances where the recipient spouse is later earning enough for self-support.

Unlike child support, there’s unfortunately no simple math formula for spousal support. Often about 20 to 25% of the payor’s pretax income is ordered in spousal support, but those payments will be tax deductible in the payor’s hands, and taxable in the recipient’s hands (child support is the opposite: taxed in the payor’s hands and not taxable in the recipient’s hands). 

The major challenge in determining a fair level of spousal support is that income must be fairly established, as the claimant may focus on that one year with a very high income in the past, and the payor's income may have fallen dramatically because of the family breakup. 

TOP 5 FAMILY LAW TIPS TO MAXIMIZE RESOLUTION RESULTS AND MINIMIZE COSTS

1. Respond in a timely way to everything. If you get served with court papers giving you until December 1st to respond, DO NOT ignore them. File something, anything, by that date. If you get a court judgment you can’t live with giving you 15 days to appeal, DO NOT miss that date, even if you can’t afford a lawyer. While a court might not accept a Notice of Appeal written on toilet paper, you can probably convince it to take some kind of paper - even if handwritten - expressing an intention to appeal. 

2. Organize all your facts and figures. It doesn’t matters if you’ve gone through life being a disorganized person. Now is the time to organize. Family law is more about numbers than other facts, and often doesn’t have a whole lot of do with the law because its legal principles are so simple. 

3. Compromise, but don’t cave. Fair legal settlements are never the product of everyone getting everything they want. But far better to settle than to leave it in the hands of a court, where neither of you will control the outcome, and the lawyers might be the only winners at the end of the day. 

4. Avoid fighting it out in court if possible. Settlement agreement negotiation and drafting by a lawyer is quite affordable, because only a few hours of time might be necessary to get to an agreement. At worst, it could be a few dozen hours. Go to court, and burning through hundreds of hours of time is entirely possible. 

5. Appeal when something really bad happens in court. Canada’s judicial system is one of checks and balances. Occasionally perverse results happen in trial courts. Judges are humans, and humans make mistakes. That is why we have appeal courts. 

In Ontario, you can appeal interlocutory (temporary) family court orders to the Divisional Court with leave (advance permission), and final family court orders to the Court of Appeal for Ontario. But appeal timelines are very short; being late in serving and filing your notice of appeal can be deadly to family law appeal success. 

Read more about the "No Fear" Family Law Approach.