There are essentially two types of divorce in Ontario: the really cheap divorce, and the really expensive divorce. The distinction between the two is less obvious than it initially seems.
If you ask everyone up front what kind of divorce they would like, they’ll invariably tell you the really cheap divorce. But they’ll then proceed to take actions (or inaction) which lead down a path to the really expensive divorce.
Divorce is really cheap - relatively speaking - if you aren’t planning to fight with your spouse over the dissolution of your marriage. You agree on property division. You agree on spousal support (or lack thereof). You agree on child custody and support. You then commit those agreements to paper, file a few documents with the court, and within 12 moths of separation you’re done. Magic. Divorce. And very low legal fees.
Divorce can become very expensive if you can’t agree on all of those things with your ex, and one or both of you decide to go to court to let a judge decide on what’s fair. The irony is that an experienced family lawyer may have already told you (or your spouse) what the likely outcome of going to court will be, but you (or your spouse) believe you can do better.
Of course one of the two parties to a divorce may be very reasonable, and still wind up with an expensive divorce because the other spouse isn’t reasonable. So in essence each of you need to pick the cheap divorce route, or you may default to the expensive route.
Family law is one of the simpler areas of law in that it’s relatively new and has lots of written modern legislation governing it, rather than old dusty laws whose meaning no one can figure out. Family law is mostly just based on fairness (like splitting most property acquired during the marriage 50-50 and perhaps paying spousal support if there are significant income inequities), and best interests of the child.
So what’s the range of “really cheap” to “really expensive?” On the low end, under $5000 for a separation agreement and divorce. You might find it even cheaper than that, but remember that all lawyers have to sell is time, so the less you pay, the less time a lawyer will be spending negotiating and drafting your agreement, and making sure every T is crossed and I is dotted.
On the high end, really expensive means somewhere between $25,000 and $250,000! Crazy, eh? I’m not saying that most court-based divorces get to the quarter million mark. But more do than you might think if there are pre-trial motions, possibly interlocutory appeals, a lengthy trial, and then an appeal of that trial result.
You can do the math for yourself. Take your lawyer’s hourly rate. Multiply by eight or so to get a daily rate.
Multiply that number by the likely number of trial days required for a fully contested trial on all issues. Then further add the number of pre-trial case conference and settlement conference half-days that are likely. Then add some days for possible pre-trial motions. And also perhaps add time for an interlocutory (temporary) order appeal. And maybe a final order appeal.
Then take all those court days with lawyer time costs, and multiply by two or three, as prep time for court - all those court forms, affidavits, factums of legal argument, case conference briefs, books of authorities, correspondence to opposing counsel and the court, settlement negotiations with opposing counsel, trial witness and other evidence preparation - will likely take at least twice as long (as sometimes three times as long) as any court days they are linked to. So bet on two to three days of prep for any court day.
There, you’ve now got your $25,000 to $250,000 figure.
So what are the tips for saving yourself lots of money on a family lawyer?
1. DO EVERYTHING HUMANLY POSSIBLE TO KEEP YOUR CASE OUT OF COURT
While many divorcing spouses are focussed on the "big three" of property split, support, and custody, really it is the "big four" as legal costs to get to the optimal position on the big three is an equally important factor.
Think you’re getting a bit of the short stick on custody conditions? Or on support? Or on property split? Ask your lawyer to take another shot at negotiations. Might only take another couple of hours of time. If that fails, think long and hard over whether court is worth it.
Being told you’ll only see your child every second weekend, when you think alternating custody weeks 50-50 is fair, may be worth going to war over in court. But be sure you have the resources for that war. Not getting the used Buick - or perhaps the even newer Mercedes - you think you have the right to? Probably not worth it.
2. BE ORGANIZED AND FIGURE OUT YOUR BOTTOM LINE BEFORE YOU MEET YOUR LAWYER
Figure out before you see a lawyer the details of what you believe to be fair on property division, support and custody. Don’t be vague, you need to be very, very specific. And bring lots of documents with you to your first lawyer meeting. Ideally, drop off those documents before the meeting, as that will make the first meeting more efficient. Boxes of documents wouldn’t overdo it. Lawyers are good at quickly scanning through reams of documents, but burn through through lots of time if they have to pull every small fact out of a client.
Lawyers can quickly run up a bill if you are constantly being asked for new or missing documents. On your part, demand a required document list up front from the lawyer so you can pull everything together in one go. If you do wind up in court, documents will often be far more compelling proof than any oral testimony or sworn affidavit, because documents are independent evidence, often pre-dating the marital split.
3. DON'T THINK IT'S A GOOD IDEA TO INITIATE LITIGATION JUST TO SCARE THE OTHER SIDE
Attempting to bluff your way into a more favourable settlement by starting a family court action, without the resources or resolve to follow through on it, is like pulling out that .357 Magnum Revolver from your belt, with the safety off, just because you intend to waive it around a bit to scare someone. We all know where that leads. Same with going to court as a bluff.
4. IF YOU DO WIND UP IN COURT, RACE TO THE FINISH LINE AS FAST AS YOU CAN
Time truly is money in the legal world. Three days in court costs 1/3 of nine days in court. So do your best to avoid multiple case conferences and lengthy trials.
Some courts will try to trap you in the "never-ending case conference," in order to avoid you eating up court trial time. Don’t let the court do that to you.
Push for a single settlement conference. Try to expedite any trial management conference. Try to do as much of the trial as possible on paper rather than through live witnesses unless credibility is a huge issue.
Ultimately it’s the court calling the procedural shots, but experienced lawyers know how to pick the right passage to shoot those court rapids, and not get hung up on the judicial rocks.
5. DON’T TRY TO DO ANY OF THIS WITHOUT A LAWYER’S HELP
Yes, I know lawyers are expensive. And I know my emphasis above on the relative simplicity of family law principles might even encourage you to believe that you can figure out the underlying theory. And you absolutely can.
But the problem is that you won’t be able to grasp the strategy and tactics required to get a good result in a timely manner before running through the process a few times. Lawyers often have the benefit of having had hundreds of clients they’ve run through the system. Doing it yourself, you would need to figure out how to get it right the first time. And that's just not possible.
I’m often consulted on family law appeals to the Ontario’s Divisional Court or Court of Appeal (appeals are one of my “things”), by intelligent hard working people who tried to navigate the family court process themselves, often against a spouse who had a lawyer. The results can only be described as disastrous. Time and time again. The system shouldn’t work this way. I know that. But it does.
Loss of child custody. Loss of $150,000 in family assets because of miscalculations on net family property. Ordered payments of spousal support when in fact support payments should have flowed the opposite way. I’ve seen all of that.
I get that often these good people started out with lawyers, and dropped the lawyers for financial reasons, being left to soldier on by themselves. But when they came to me for an appeal, they were faced with much larger legal bills than they might have originally incurred in attempting to keep on their trial lawyers, or in hiring a trial lawyer in the first place. Everyone needs to be aware that the best shot you'll ever have at a fair result is at trial, not on appeal.
So among your possibilities of getting legal help make sure your consider: (1) apply for legal aid, it never hurts to ask (though if you have a well paying job, you won’t get it); (2) budget for significant legal fees, and carefully assess your ability to borrow for those fees, as running out of money half way can be the worst scenario of all; (3) talk to lawyers who might be able to offer "unbundled" legal services, which sometimes includes acting as a “coach” - it’s a newer concept, and may produce mixed results at best if you’re forced to go to court by yourself armed only with a little bit of advice, but it's better than nothing; (4) carefully evaluate lawyers from the start of your case, so that you make an informed retainer choice, and just don’t grab anyone who might be available. You don’t want to wind up in the position of having paid a lawyer a lot of money to help you, and then have a falling out with that lawyer mid-case causing you to need to switch lawyers, and possibly being stuck in lawyer limbo for weeks or months while you try to find a replacement.
Viewing each family law choice through the "really cheap divorce" lens is necessary in order to truly understand how much a divorce really costs in Ontario (or elsewhere).
Gordon S. Campbell is a Family Law Barrister practicing throughout Ontario. Lean more at www.nofearfamilylaw.com.