Divorce Lawyer Cost – Justice made inaccessible

1. For Families, the Courts are dictated as the only option.
2. The justice system’s court statistics mislead when they allude to the fact that a very low percentage of disputes lead to trial.
3. The inference is that the courts have been successful and with little involvement are able to effectively settle issues before trials are necessary.

That is simply not true. The court is involved in the first step and every step using case conferences and application or motion hearings. These procedures require all the same costs and resources needed for trial. Trials are just another extension of the exclusive court involvement. By the time it gets to the trial most orders have already been issued or the money has run out. But the stats look good. To have a system that is exclusive to the involvement of court process makes no sense and just adds unnecessary emotional and financial drain to families.

When divorce happens and the family’s world comes crashing down it’s not an individual problem that needs to be dealt with but immediately a multitude of significant and interrelated challenges that come into play. Included are issues related to the kids, whose lives have just collapsed, finances, home, schooling, housing, assets, work, medical impacts, emotional, family etc. There has got to be a better way to deal with the myriad of issues rather than funding new court houses and clogging existing courtrooms in a system that fails to deal adequately with the many emotionally and financially devastating issues. Courts just add more grief to an already catastrophic situation and for the $billions spent, they add absolutely no value to the family and in fact exacerbate the family destruction.

What should be the solution is in fact a large part of the problem and in this case it’s the courts. The justice system has become so convoluted that instead of helping families has become an immense burden. As detailed in Part 1 the Family Justice consists of a patchwork of federal, provincial jurisdictions, fractured laws, expensive lawyers, inefficient, ineffective process, courts and other special groups with their own agendas operating within an environment that is resistant to change due to their self serving interests. Using traditional methods to make any change in such an environment is an immense undertaking if not impossible.

“GET FAMILIES OUT OF COURT NOW” (Get FOOCN) Rather that wasting energies on fixing the court system, its
time to get the court out of the process, utilize the huge amount of money wasted to instead implement a more conciliatory, effective and efficient process and provide all members of the family with the dignity and Human Rights that Canada values so highly.

The real question is why even bother trying to correct a system which even under ideal conditions is not suitable place to deal with family issues is the first place. As identified earlier, why do we regard negotiation as the best means to resolve government conflict, police standoffs, land claims, union and management disputes yet see the legal adversarial approach as the best way to deal with family issues?
For every other jurisdiction the legal process is the last resort effort. Yet for divorce it is the first and only choice.

The Lawyer – It’s No Joke

From the Divorce Act

Duty of legal adviser

It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding;

• to draw the the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and
• to discuss with the spouse the possibility of the reconciliation of the spouses and
• to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

Idem (2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.

Certification (3) Every document presented to a court by a barrister, solicitor, lawyer or advocate that formally commences a divorce proceeding shall contain a statement by him or her certifying that he or she has complied with this section.

Duty of court — reconciliation

In a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

After 13 years in court I have yet to see meaningful attempt at negotiation or adherence to these directives. At best there is an incidental token effort to comply with the law. The bottom line is that successful negotiation and mediation requires fairness (a level playing field) and a set of rules. There is neither and judges make sure one doesn’t exist. So the bottom line is, as I stated previously, why would a woman negotiate or mediate for some when by going to court she will get it all. And again without conflict how does the divorce industry generate profit.

The Legal Process – Courts and Lawyers

Again and although I was sceptical at first, I would agree with
the early warnings…..”If the marriage wasn’t dead before, it
surely will be after the legal proceedings start”.

How can anyone expect that 2 cunning professionals, representing the interests of their clients can within minutes in front of the judge expect a ruling that would reflect justice? Can you imagine the outrage if criminals and terrorists were treated this way? Unfortunately not everyone has a $million or is supported by the criminal justice system.

The question is, are the courts the intelligent way to settle family related non-criminal disputes? How can a process that diverts significant money from the kids and pits father against mother be “in their best interest”.

Why do we regard negotiation as the best means to resolve government conflict, police standoffs, and union and management disputes yet see the legal adversarial approach as the best way to deal with family issues?

And whether politically correct or not gender bias comes into play. In the “best interest of the kids” there is a stereotyping of mother as “the caregiver ” and father as “the breadwinner”. The typical results, mother gets custody, support and total control and the fathers, regardless of previous family commitment now becomes only the family financier with absolutely no accountability or say in the nurturing of their children, how the money will be spent and if it is in fact going being used in “the best interest of the kids”.
Is there any wonder dads feel cheated?

In my own case whenever I went before a judge it seemed that the outcome had already been predetermined. I couldn’t believe how, some judges could be so out of touch with reality; ignorant of the laws they enforce and blatantly biased.

The objective seemed to punish me, force me into bankruptcy and make sure I left without any shred of dignity. It seemed the harder I worked, the more I tried to dig out of a hole, the harsher the response. It seems that the intent was to make sure that I was wounded enough to give up the fight. I have over the years met and heard from many men feeling the same way. When you are despondent and fighting for survival, there is little energy to do much else. The courts rely on this to make sure that there is as little resistance as possible to keep the truth hidden.

Examples….Did you know

Typically legal fees are $250 – $450per hour, whether in court, traveling to the courthouse or waiting in the lobby for a court clerk to schedule a date. One hour of lawyer time is equal to a weekly income for someone at minimum wage or E.I.

Even Supreme Court Judge Beverley McLachlin in her annual speech to the Canadian Bar Association in 2006 addressed the issue and stated that lawyers have “a crucial role to play” to make the system accessible to average Canadians, not just large corporations and those charged with serious crimes.

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She asked, “Does the typical law firm’s fee structure have anything to do with this? Can more creative ways be found to bill clients proportionate to the complexity and the value of the proceedings?”

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Lots of luck…. Unless there is a an incentive to adopt change or oversight brought in, lawyers cannot be relied on to act on principle or police themselves and in fact would rather kill the golden goose than change.

A quote from the National Post….Janice Tibbetts, CanWest News Service; Published: Thursday, August 09, 2007

Canada’s justice system is on a dangerous path that can only be reversed if lawyers cut their fees and governments put more money into legal aid, says Justice John Gomery, the judge who led the 2004-2005 inquiry into the federal sponsorship scandal.

Speaking on the eve of his retirement, Judge Gomery said the escalating cost of legal services is an “alarming trend” that is putting the justice system out of reach for everyone but the wealthy.

How can anyone expect someone who has lost their job to possibly manage this cost to simply change a support order in addition to the emotional aspects of losing a job, the need to find another and survive which under normal circumstance is extremely stressful enough. The cost of 1 hour lawyer time equals a week of E.I. If a choice must be made of either paying a lawyer or buying groceries and keeping the banks at bay what would you do? This is how deadbeats are created and while trying to help the family recover are subjected to the screws being tightened by the Family Responsibility office. Before long the FRO will kill their credit rating, will have their drivers license suspended preventing them from searching for work, surviving the situation and carrying on with a meaningful life. Is it not understandable that some are forced to throw in the towel? What is the sense and where is the justice or fairness? It’s amazing even more aren’t driven to suicide. Has the justice system lost all reasonableness, compassion and common sense? Have we as a society become so numbed that we’ve reverted to a jungle mentality of survival of the wealthy above all else….Oops…. I’m off track again.

From my experience, a minimum of 10 hours to get acquainted with the case and at least 10 is required just to prepare for each court visit. Before you even step into the court room, the lawyers have taken $20,000 from the family.

Some additional clerical fees of $100 per hour are added to bills. Aren’t lawyer’s costs already loaded enough.

• Additional expenses for lawyers. Why is lawyer’s cost for photo copies $.50 when at Staples is $.05. Why is their car reimbursement over a $1.00 / km when the going rate is $.40.
• Why do companies conduct business with a 25 cent e-mails while lawyers are still using $100.00 letters.
• How is one expected to pick a decent lawyer, without some information made available? Maybe a few stats to help pick a good one before you are in court and it’s too late. Stats like, hours per case, successful judgments or ability to settle before court hearing….this would help immensely
• There has recently been a website developed to rate your physician….http://www.ratemds.com/canada/. Have a look, this is excellent and should also be put in place for lawyers and judges.

And as soon as the judgement is made the lawyer ’s fees go up even more when they submit their costs and ask the court for the cost order. Regardless of what they charge their client, they are permitted to ask for costs according the “Law Society” wage schedule based on years of service. By the way if you represent yourself you can’t submit costs

With lawyers, there is little attempt at compromise (and why would they) they are rewarded for prolonging the fight not for success of the family or their own client for that matter. The process is confrontational, lengthy, inefficient, expensive and damaging to the family unit as a whole.

Lawyers are in front of same judges and other lawyers (they even call them friends in court) every week. It ’s a club and don’t rock the boat environment. For most hearings I got the feeling everyone knew the outcome before we went in except for me.

The fact is that many family court cases could be resolved instantly with one simple question, “Do either of you intend to prove to the court that the other parent is unfit?” Since the answer to that question would be “no” from both parents in the majority of cases, then the compromise of 50/50 joint physical custody could, and should, be ordered immediately.

Of course, such a logical solution is ignored because it reduces the billable hours that the family courts create for lawyers and would eliminate the need for a system that ensures a steady influx of customers for courts and enforcement agencies who profit by maintaining a pool of deadbeat dads created by the justice system.

Judge Speyer shouldn’t get all the credit for bankrupting me. Credit should also go to the discriminatory Spousal Support Guidelines, laws such as the Child Support Guidelines, legal costs, the protracted process of the Justice System, Tax laws and the multitude of orders over time.

Bankruptcy is not immediate but a slow process of many years of fighting for survival within a justice system that is supposed to help families get a new beginning but instead slowly drains the life out of the family for their own greed.

Following are the steps that contributed to my bankruptcy….I try to avoid relating to my personal situation as much as possible but feel examples and in this case, my own, help to put the real world into perspective.

Pension Equalization:

As the result of Divorce there is a requirement for equalization or a 50 /50 split of assets. I was required to equalize and pay out my pension which I myself can’t touch until I’m 60 although my ex now has immediate access to these funds. Right off, this put me into significant debt. I then took an opportunity at work to take a buyout package from a job I didn’t want to leave to recover financially. As it turns out, this was all for not, as the payout in a court judgement was ruled income (contrary to advice given) and after paying spousal support, child support and tax on this amount there was nothing left. By the way when my ex received an inheritance it did not count as income. Sure would sure be nice if there were a set of rules defined so life decisions could be made (more on this later).

Support Paid on Support Paid

As I mentioned a number of times, the 2 children who chose to live with me are not even recognized by The Child Support Guidelines. So after paying Child Support for 2 kids and spousal support, the kids that chose to live with me are stuck with what’s left. Not much. What makes matters worse is that not only do I have these costs, I am also paying Child Support and Spousal support on this amount as it is not deducted in the net income calculation for support.

Cashing out Life Savings

As it become impossible to maintain support for everyone, it becomes necessary to use savings such as RRSP’s to live day to day. After the tax hit there isn’t much left and again the income from RRSP’s are included in net income and used to calculate child and spousal support so double tax and double support is paid and it is just a money losing spiral. At this point picture a hamster on a wheel or for you older folks, Lucy in the plant packaging chocolates.

Long Distance Families

As it turned out my ex decided to move herself and 2 of the children 1500 kms away. For me to keep any relationship and contact with the children requires that if I travel that I incur airfare and hotel rooms and if they travel, I have their travel costs and expenses while visiting. Besides the difficulty of trying to keep relationships, none of these expenses are included in the Child or Spousal support calculations so in addition to the paying these costs they are also used to calculate child and spousal support. In effect I am paying support on monies to keep a relationship with 2 kids 1500 kms away who been picked as children of privilege by the courts while the kids with me get the dregs.

Expenses to earn a living;

Similar to the above, in order to earn the monies that support everyone requires that I make a reasonable salary. To do this I have considerable business expenses, including the commute to work. As with other expenses these are not considered in calculating child and spousal support. So I’m paying support on expenses required to earn the salary in the first place. My ex of course has none of these expenses.

Judge Czutrin’s solution: Take the back roads instead of the 407. Where do they find these guys?