1. INITIAL CONTACT BETWEEN CLIENT AND LAWYER
2. FIRST CONSULTATION
3. SECOND CONSULTATION
4. EXCHANGE OF INFORMATION BETWEEN LAWYERS
5. NEGOTIATIONS WITH SPOUSE’s LAWYER
6A. THE DRAFTING, DISCUSSION AND SIGNING OF A SEPARATION AGREEMENT (or minutes of settlement)


or
6B. COMMENCEMENT OF LEGAL PROCEEDINGS INCLUDING INTERIM PROCEEDINGS
or
6C. MEDIATION (can be at a previous or later stage) AND OPTIONAL IF NO SETTLEMENT
6D. APPOINTMENT OF OFFICIAL GUARDIAN (in disputed parenting cases)
6E. PSYCHOLOGICAL ASSESSMENT (in disputed parenting cases)
6F. OFFER TO SETTLE (can be made at any stage of the process)
7. NEGOTIATIONS — If successful then 6A
8. CROSS EXAMINATIONS ON FINANCIAL STATEMENTS AND AFFIDAVITS (Optional)
9. NEGOTIATION — If successful then 6A
10. INTERIM MOTION HEARING (optional and for only some issues) (possible to appeal but unlikely to appeal)
11. NEGOTIATION — If successful the 6A
2. EXAMINATIONS FOR DISCOVERY
13. NEGOTIATION — If successful then 6A
14. PRETRIAL CONFERENCE
15. NEGOTIATION — If successful then 6A
16. TRIAL
17. APPEAL TO COURT OF APPEAL (if one party not satisfied with the decision)
18. ASSESSMENT OF COSTS (if awarded and amount not agreed upon)

THE STEPS IN MATRIMONIAL DISPUTES

The legal process involved in matrimonial disputes involves a number of specific steps. I will briefly outline how I view those many activities.

1. INITIAL CONTACT BETWEEN CLIENT AND LAWYER: This usually occurs when the client initially telephones my office. If the client wants to talk to me on the phone at that time I will do so for a brief period. I ask about the general nature of the client's problem, whether the client needs immediate help, whether a legal proceeding has been started by the other spouse, and whether I am the right person for that client. I will advise the client on any urgent concerns. I discuss fees generally and then arrange an appointment. I ask the client if she or he has not already done so to obtain my Family Law Packet from the Internet or from my office which I would have mailed out that day. It may also be picked up at my office In the Family Packet there are questionnaires to complete and a list of documents to obtain. Or without talking to me a client may make an appointment with my staff. The client is asked to obtain my Family Law Packet prior to that first appointment and to complete the questionnaires in it by hand or on my internet site.

2. FIRST CONSULTATION: This important meeting will often be the longest consultation. I will review the questionnaires from my Family Law Packet. I will obtain the further information needed to advise the client of his or her legal rights and obligations. I will explain the process to obtain those rights. I discuss our lawyer and client relationship by explaining our respective roles. I ask the client to tell me of his or her priorities and what the client expects to achieve in the terms of the settlement.

The client signs a written contract (retainer) agreeing to the my hourly rate and provides me with money ( cheque, cash or credit card) as a down payment (also called a retainer). That payment is deposited into my trust account. I do not have use of the money until I actually bill the client. The interest from the trust account goes to the Law Society to help pay for Legal Aid, libraries and research projects.

The client will usually not have all the information and documentation needed so a list will be made of what further information or documentation is needed. The client will be given a blank court financial statement (showing the income, expenses and assets of the client). This will be completed by the client for the second consultation.

The client and I will decide a strategy on how to proceed - whether by trying to negotiate a separation agreement, by starting a court action or by mediating. Whether to have a psychological assessment or involving the Ontario government's Children's Lawyer will be discussed. I will advise on the ramifications of each option. Even if the other spouse has already started a court action it is still possible to suggest a settlement agreement and or mediation. At this time there may be enough information to write the other spouse, or lawyer representing the spouse, with a preliminary or even final proposal. I write that letter at this consultation so to ensure the contents and tone of that letter are acceptable to the client and to move the file along quickly

I will also discuss several related topics that will be of interest to the client, such as personal counselling, tax implications, dating, name changes, Canada Pension division of credits, wills, insurance beneficiaries and RRSP designations.

I provide the client with my Family Law Client Manual which contains further information and a place to hold all correspondence and documents on the file. I ensure my clients get a copy of everything of importance on their file.

3. SECOND CONSULTATION: The second consultation usually takes place a week after the first meeting . The client's financial statement will be completed in detail with the client. I have a second video monitor on my desk so that my clients and I can review the financial statement together easily. Information gathering will continue and hopefully be completed. I will answer new questions the client has that arise from recent discussions with the spouse, from our first consultation, or from the client's reading of material that I gave in the Family Law Client Manual. I will report to the client on any issue I had to research. Another letter to the spouse or spouse's lawyer will be reviewed so that it reflects the position the client wants. That letter will state the client's position as to the terms of the settlement. The letter can be conditional upon confirmation from the other spouse as to his or her exact income and exact assets.

4. EXCHANGE OF INFORMATION BETWEEN LAWYERS: To be able to advise a client properly, it is necessary to know the facts and position of the other spouse. We therefore exchange sworn financial statements and proposal letters. The Family Law Rules are very clear that if any information provided in a financial statement, affidavit ,questioning or any other method was incorrect or has changed there is an obligation to correct that information immediately in writing.

At this early stage it may be advisable to have one lawyer draft a separation agreement setting forth all the terms of the settlement so there is no question about what all the terms are that the client is proposing down to fine detail.

5. NEGOTIATIONS WITH SPOUSE'S LAWYER: The purpose of this stage is to obtain quickly, cheaply, and without going to court, a separation agreement that sets forth the terms of the separation (custody, access, division of property and support). I believe some basic rules to obtain those goals are as follows: (1) All information the other spouse is entitled to should be quickly and easily given. This usually would include a sworn financial statement and supporting material such as pay stubs and asset documentation. (2) Make one's position clearly known. (3) Be reasonable in even the initial proposal. Too often, in my opinion, clients and their lawyers make outrageous demands that only fuel the existing animosity between the parties and reduce the likelihood of a settlement. (4) Positions taken should be based on legal rights, not on unrealistic desires.

6(A). DRAFTING, DISCUSSING AND SIGNING OF A SEPARATION AGREEMENT (OR MINUTES OF SETTLEMENT): If a court action has not been commenced and the parties have come to a tentative agreement then the next step is to complete a separation agreement, containing all the terms of the settlement. If a court action has been commenced then the document to complete is the "Minutes of Settlement". Sometimes there will be both documents, with the minutes of settlement containing only the main terms (custody, support and assets) and the separation agreement containing the many other ancillary terms.

I will discuss with the client all the terms that will go into the agreement. They include the main terms, the fine detail, such as exactly how much life insurance will be in place, the length of time for child support and higher education costs, as well as the standard release and other legal clauses that make up the agreement. I will then send the draft agreement (or signed agreement) to the spouse's lawyer for approval or for further discussion of the wording of the agreement. Often the main terms will have been agreed to but the fine details, which are generally accepted, may not be acceptable by the spouse or the other lawyer.

The other side will sign the agreement once negotiations are complete and return it for the client to sign if it was not signed first. Usually there are four copies of the agreement. One is for each party and one is for each lawyer.

A separation agreement does not have to be approved or sent to the court. Only if the spouse receiving support payee wants to enforce the agreement because of arrears of payments, or he or she wants the government' Family Responsibility Office to receive the payments, is a separation agreement registered with the court. If minutes of settlement are signed, they would be filed with the court and a Judge would sign a "Judgment" (which is just a final order incorporating all of the terms of the minutes of settlement).

A separation agreement is just as binding and enforceable as a court order. It can only be changed if there has been a material change in circumstances. It cannot be changed because one party has changed his or her mind.

6(B). COMMENCEMENT OF LEGAL PROCEEDINGS

If the parties cannot agree on the terms of a settlement by themselves, through their lawyers or through mediation, then one party will commence a court action starting the process to have the court decide the terms of the separation. A court proceeding starts with a divorce action or an action under the Family Law Act (FLA). The main difference between a divorce and FLA action is that in the divorce action the marriage is dissolved. With the changes to the Family Law Rules the person commencing the action in either a divorce action or a Family Law Act action is called the applicant. The other spouse is called a respondent in either action. To commence the proceedings an application along with a financial statement is needed.

6(C). MEDIATION: Mediation is the process whereby the clients negotiate their agreement with the help of a trained mediator. As an alternative to having the court rule on the terms of the separation, it can be applied to the custody - access, support and property issues. It can be employed at the beginning of the matrimonial dispute process or after court proceedings are commenced. Though not therapy, it is somewhat therapeutic. The many advantages of mediation and a more comprehensive analysis of mediation are pointed out in my article entitled "Divorce Mediation".

6(D). APPOINTMENT OF THE CHILDREN'S LAWYER: If there is a dispute as to the custody and access of the children, it is possible for the parties or the court to appoint a lawyer to represent the children. The purpose of this lawyer is to advocate the children's wishes and to express the lawyer's opinion as to what is in the children's best interests. The lawyer appointed will be a local lawyer in private practice who has been trained by the Ontario government's Children's Lawyer's Office (part of the Attorney General's department). A social worker also is often appointed. The cost of that lawyer's services will be paid by the government. The Children's Lawyer's can refuse to appoint a lawyer, if it feels the case is not appropriate for their involvement. It is also possible that the parties appoint a lawyer to be paid by themselves. The Children's Lawyer does not like to become actively involved if there is a psychological assessment taking place. The Children's Lawyer would rather like to wait to see if the matter is resolved after the psychological assessment. The Children's Lawyer believes it is too stressful if the children are subjected to both the interviews of a lawyer and a psychologist at the same time.

6E. PSYCHOLOGICAL ASSESSMENT: A psychological assessment is undertaken in contested custody or access disputes when the parties or the court believe such an assessment would be beneficial. By providing a psychologist's opinion as to what is best for the children, the report might result in the parties resolving the dispute. If the parties still cannot agree on the custodial arrangement, the report would help the court decide the issue. It is important to note that the court is not delegating to the psychologist the task of deciding the custody issue but just asking for an expert opinion and additional facts to arrive at a decision. That opinion is extremely important but not always the determining factor.

A psychologist or psychiatrist and his or her staff will interview not only the father, mother and children but also other relevant people such as common law spouses. Most often psychological tests are done with the participants. Sometimes a home study is performed.

6F. OFFERS TO SETTLE: An offer to settle is a written statement setting out the exact terms upon which the spouse making the offer would settle the dispute. If the other spouse accepts that offer before the court makes a decision before the offer is withdrawn, then the terms set out in the offer will be automatically confirmed by a Judge in a court order or judgment.

The consequence of not accepting the offer can be significant. If the case goes to trial and the person refusing the offer does not do as well as the offer provided for, then that person may be liable to pay a portion (and even a large portion) of the legal costs of the person making the offer. The Judge has complete discretion in awarding costs. He or she takes into account other factors such as success of what was claimed, conduct throughout the proceedings and ability to pay costs. Offers to Settle are an extremely important factor in deciding the cost issue.

Offers to Settle indicate what the exact terms of settlement are. It is necessary to have this in writing because with the many issues and terms involved in a matrimonial dispute there may be a misunderstanding about the terms of an oral offer. Even between a client and his or her own lawyer, a misconception as to what the client thought he or she was settling for can occur.

NEGOTIATIONS: Ongoing during all steps - If successful then 6A

• CASE CONFERENCE: The new Family Law Rules have created a new step in

Family Law proceedings to try and resolve the whole case quicker and less costly. At the time of starting an application the court will give a date at which the parties and their lawyers will appear before a Judge to discuss the entire case. This will be generally six weeks from starting the application. The Family Law Rules state that the objectives of the case conference are (1) exploring the chances of settling the case (b)identifying the issues that are in dispute and those that are not dispute (c) exploring ways to resolve the issues that are in dispute (d) insuring disclosure of the relevant evidence (e) noting admissions that may simplify the case (f) setting the date for the next step in the case (g) if possible, having the parties agreed to a specific timetable for the steps to be taken in the case before it comes to trial (h) organizing a settlement conference, or holding one if appropriate. At a case conference a court has the power to make orders so perhaps temporary order could be made but the case conference is more like an abbreviated settlement conference as the court presently only schedules 20 minutes for each conference. Each party must file seven days in advance a Case Conference Brief outlining what the case is all about. As well up to date financial statements must be filed.

8. TEMPORARY MOTION: If there is an immediate need for a decision by a Judge concerning custody, access, support, harassment, possession of the house or depletion of the assets, then an interim hearing may take place. The court under the new rules must now give permission for such a motion. The test is whether there is an urgency that can not wait for a conference or a trial. In addition to the financial statement at a temporary hearing an affidavit by the client setting out his or her facts relied upon to obtain the relief requested and a notice of motion setting out the relief requested are required.

At the temporary motion the Judge makes a decision based on the affidavits, financial statements and transcripts of any Questioning and what each lawyer has argued orally . The Judge usually gives a decision at the hearing but may sometime reserve his or her decision to allow time to look at the material in greater depth and give the matter more thought. In that case, the decision is usually given within a day or two but can take longer if the matter is complex. Usually in that case the Judge will write out more detailed reasons for the decision than the brief reasons that would accompany a decision made at the hearing.

NEGOTIATION: If successful then step 6A - Drafting and Signing Minutes of Settlement.

9. QUESTIONING : (Formerly called Cross examinations and discovery) If one party believes it is necessary to ensure that the other party discloses all information that is relevant to the case especially if the matter will probably go to trial that party may want to have the other party questioned under oath. Questioning also accomplishes other functions. It ensures that the other party does not change his or her evidence at trial. Questioning gets the other party to make admissions. Questioning is also an opportunity to access how credible the other party will be as a witness.

Questioning has not always been that productive or really necessary in matrimonial matters and it is expensive. Therefore under the new Family law Rules it is not an automatic right to have Questioning. The court will decide if it is necessary if the parties can not agree.

The Questioning takes place at an "Official Examiner's" office rather than at a court house. There is a court reporter present to record the questions and answers and to transcribe the proceedings into written transcripts if necessary. Both parties may attend but usually just the party being examined, his or her lawyer, the opposing lawyer and the reporter are present.

NEGOTIATION - If successful then 6A

10. SETTLEMENT CONFERENCE : The Settlement Conference was formerly called the Pre Trial. A Judge who will not be hearing the trial if the matter does not settle tries at the settlement conference to persuade the parties to settle. The Judge will give his or her specific opinion as to what that Judge would order if the case went to trial. The objectives of the Settlement Conference as set out in the Rules are (1) exploring the chances of settling the case ( 2) settling or narrowing the issues that are in dispute (3) insuring disclosure of the relevant evidence (4) noting admissions that may simplify the case (5) if possible obtaining a view as to how the court might decide the case (5) considering any other matter that may help in a quick and just conclusion of the case (6) if the case is not settled, identifying the witnesses and other evidence to be presented at trial, estimating the time needed for the trial and scheduling the case for trial (7) organizing a trial management conference or holding one if appropriate.

A good settlement often settles the case because at this point all the information should have been obtained and the parties positions known. Therefore a settlement conference will allow a judge to give the likely decision if the matter went to trial.

The Family Law Rules require that all the documentation for assets in dispute be provided at the settlement conference. The rules also require that Offers to Settle must be made prior to the settlement conference. These requirements will force the clients to be prepared to settle the case. Like the case conference the Judge has the power at the settlement conference to make orders and could do so with respect to documentation that is not complete.

NEGOTIATION - If successful then 6A

11. TRIAL MANAGEMENT CONFERENCE: This type of conference is a new creation under the Family Law Rules. The purposes of this conference as set out in the rules are:(1) exploring the chances of settling the case (2) arranging to receive evidence by a written report, an agreed statement of facts, an affidavit or another method, if appropriate;(c) deciding how the trial will proceed;(d) ensuring that the parties know what witnesses will testify and what other evidence will be presented at trial;(e) estimating the time needed for trial; (f) setting the trial date, if it has not already been done.

NEGOTIATION - If successful then 6A

12. TRIAL: If the parties have been unable to settle all of their issues in dispute then unfortunately a Judge will make the decisions for them after a trial. I say "unfortunately" because trials are very expensive financially and emotionally. The trail takes place in a court room with a Judge, a court reporter, the lawyers, the clients and their witnesses. After short opening addresses by each lawyer the parties and their witnesses are asked questions by their own lawyer and their spouses lawyer. Generally there is a joint book of relevant documents and a statement of agreed upon facts ( the ones not in dispute) so to reduce the time spent at the trial.

To make his or decision the judge can only rely on what has been presented in either what the parties and the other witnesses say or in agreed upon facts or documents that have been put into evidence. So a lot of time is taken up having the clients repeat their story. At the end of the witnesses each lawyer presents their client's argument as to what the Judge should decide.

Even the simplest family law case can take two days. Contested custody or involved cases take much longer. Trials are therefore very expensive because of the amount of preparation time and appearance time in court.

The judge rarely decides the case at the time of trial but usually takes a few weeks and sometimes months to give a decision. The Judges's decision is generally in writing and given to the lawyers to advise their clients of the outcome.

13. APPEAL TO THE COURT OF APPEAL: If one party is unhappy with the judge's decision it is possible to have that decision reviewed by the Court of Appeal. This court is in Toronto where three Judges of the Court of Appeal listen to the lawyers argue the case again. The clients do not testify again as the court relies on the transcripts of what was said at that the trial. It usually takes many months before an appeal is heard. It is expensive because the transcripts of the trail must be ordered and paid for. The transcripts can cost a few thousand dollars even for a short trial. That cost is borne completely by the party bringing the appeal. There is a lot of paper work for the person appealing which is expensive. Then there is the cost of going to Toronto which includes the travel time and waiting around time to be heard.

The biggest problem of winning an appeal is to pass the tests set by the appeal procedure to have a Judgement changed. The Court of Appeal will not decide the case on different findings of facts than the trial Judge unless the court of appeal judges believe the trial judge was really wrong in his or her findings. Therefore if the trail judge believes one party was lying and decides the case on the evidence of the other party the court of appeal is not going decide who was telling the truth. The court of appeal will also not over rule a trial judge's decision if that decision was in the range of what could possibly be decided. Therefore if the range of spousal support is $500 to $1500 and the court of appeal would have decided on $500 but $1500 was what the trial judge found the court of appeal will not change the $1500 Judgement. The court of Appeal is looking for errors in interpretation of the law.

14. AWARDING AND SETTING LEGAL COSTS: After the decision is given by the Judge each party usually gives written arguments to the Judge concerning which party should be awarded their legal costs. Each party will compare the decision with the offers to settle and discuss the behaviour of the parties and their ability to pay. Those are the main criteria to be used when deciding costs. It is not always that the successful party will obtain their costs. The Judge will then decide on which party would get costs and generally how much in costs. A very successful party who had a better offer to settle than what he or she received may get most of their legal fees paid for by the other spouse. A difficult spouse who did not submit a reasonable offer to settle may have to pay the other spouse's costs.

Quite often now a Judge will set the amount of costs when awarding them. Therefore in the arguments for costs each lawyer will submit their time records and their arguments as to how much costs. If the matter is complicated and needs more investigation as to what costs should be the Judge may ask the Assessment Officer 9 a court official who specializes in the issue of costs) to make the decision as to how much the costs should be.

*This article can only provide a general overview of a legal topic. Readers should consult a lawyer and not simply act on the information provided in this article.

**Copyright Lawrence S. Pascoe, January 2000

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