Success in family court is difficult to measure. My criminal lawyer colleagues tell me a good criminal lawyer typically has a success rate of 50 percent.  In a criminal proceeding the Crown has the burden of proving an accused’s guilt beyond a reasonable doubt.  If you are charged with a criminal offence you want a criminal lawyer who is willing to challenge the Crown.  I would guess my own ‘success rate’ was about 80 percent, but that was because I only put issues before the court if I was quite certain I could be successful and negotiations had failed. Put another way, it is easier to meet lowered expectations.

Typically, when parties go to court they are asking for interim, or temporary, relief from a judge on a motion.  One party asks the court for several things as does the other party.  Judges typically give both parties some of what they want but both usually leave the court feeling they didn’t get what they wanted. I do a great deal of persuading with my own clients to avoid court.

People often contact my office asking what it costs for a separation agreement.  Typically they will tell me they have worked out the details with their spouse and want a simple agreement to put it all in writing.  I am sure you’ve heard horror stories about expensive divorces that cost many tens of thousand dollars and want to avoid that kind of wasteful fight. All clients hope to keep their costs down and avoid an expensive legal battle. I understand that completely.

Hopefully you and your spouse have been able to discuss what you would like to see in your agreement and now figure you don’t need a lawyer to do anything more than draft it in a separation agreement. At the same time, you no doubt want an agreement that you can rely upon in the future. For example, if you agree to divide your property a particular way, you wouldn’t want your spouse to be able to change the agreement later and ask for more of your property. Unfortunately, the Courts regularly deal with cases where one party to an agreement tries to change it after it is signed. Judges regularly set aside (or invalidate) agreements. The most common reasons being: the parties didn’t address an issue; one party claims he or she didn’t understand the agreement; or the person didn’t have independent legal advice to know his or her rights before signing the agreement.

The Goal

The goal is to have a solid separation agreement that you can rely on in the future. There is more involved in doing this properly than simply drafting the agreement. Ideally you want to have a record of some negotiations, proof of full financial disclosure, and independent legal advice for both parties.

People often contact my office asking if I can “witness” an agreement, but what they are really asking for is Independent Legal Advice or “ILA”, which is considerably more involved than simply witnessing an agreement.

There are a number of things that help make domestic agreements (That’s the blanket family law term for pre-nuptial agreements, cohabitation agreements, separation agreements, etc.) binding. Perhaps the most important is for each of the signing parties to seek out the advice of a lawyer.

Any time I have been in court and someone is challenging a domestic agreement the first thing the judge does is she or he turns to the back of the agreement to see if lawyers signed off on the agreement. That’s where lawyers attach “Certificates of Independent Legal Advice”.

The certificate proves: I was consulted in my professional capacity by one of the parties as to his or her obligations and rights under the agreement; that I acted solely for him or her and fully explained the nature and effect of the agreement; and that he or she acknowledged and declared that he or she fully understood the nature and effect of the agreement and was prepared to sign without fear, threats, compulsion or influence by any other person.

Typically, when a judge sees that a certificate is attached to a separation agreement the challenge usually fails (unless the person trying to set aside the agreement can show the other person failed to disclose relevant information about assets etc.). For example, the certificate indicates that you received ILA, which precludes you from saying that you didn’t understand the agreement. Your only option to contest an agreement tthen is to complain that I failed to property explain the agreement to you, and that’s why I am very careful in providing ILA.

Because of the potential liability with domestic agreements I will not provide ILA on agreements that have not been prepared by another lawyer. Homemade or "kit" agreements have proven too difficult to work with.

People typically want a cohabitation agreement or prenuptial agreement because they want to opt out of the law with respect to support and / or property. The idea is that if you separate the agreement would prevent your spouse from attempting to get what he or she is entitled to under the law. This potentially involves grreat amounts of money and / or property, so the courts hold those agreements to a very high standard.

I appreciate that you don’t want to spend a fortune, but If you are going to go to the trouble of preparing a cohabitation agreement, you want to ensure that it is binding. An agreement that won’t stand up in court isn’t worth the paper it’s written on.

I have never seen a homemade or fill-in-the-blank agreement (available at bookstores or online) that would hold up in court.

The goal is to have a really solid agreement that you can rely on in the future. To do this properly there is more involved than simply drafting the agreement. Ideally you want to have a record of some negotiations, proof of full financial disclosure, and independent legal advice for both parties.

If your agreement has been prepared by another lawyer then the fee for ILA (without negotiations) is $1,000 plus HST. If you want me to draft the agreement, I usually ask for my full standard retainer of $5,000. The actual drafting of the agreement usually takes only a few hours ($375/hr), however we also prepare a full financial statement, as well. If you want to come in and review your agreement we can do that in a consultation.

One of the constant challenges in practicing family law is representing a client whose spouse for financial, or other reasons, refuses to retain a lawyer. The Law Society of Ontario has established Rules of Professional Conduct which include guidelines for dealing with self-represented parties. Here is what the Law Society has to say on the subject:

“…In some cases, misunderstandings, protracted proceedings, and additional expense to the lawyer's client may result.

When a lawyer acting for a client is dealing with a self-represented person, the lawyer must ensure that the self-represented person does not think or infer that the lawyer is also acting for him or her. Subrule 2.04(14) of the Rules requires lawyers to:

  • Urge the unrepresented person to obtain independent legal representation;

  • Take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and,

  • Make clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client and accordingly his or her comments may be partisan.”

You will likely incur additional expenses if the other party does not hire a lawyer.

As a general rule, I wil not negotiate the terms of a separation agreement with someone who does not have a lawyer. In some cases I will have my own client pay for his or her spouse to see a lawyer. If the situation is particularly high-conflict, we may put the matter before the court where negotiations can take place with some guidance from a judge.

We have a no-fault system for family law issues in Ontario. Judges are not there to punish someone who had an affair or engaged in other misconduct. The Court’s focus is always on the future. No Judge is interested in reading a long list of grievances or sorting out who did what. The first impression a judge will have of you comes from the paperwork you file with the court. It is important to include positive and practical solutions to the problems facing everyone involved - particularly children. Demanding justice or asking the court to punish your former spouse tells the Judge you are not focused on what is important.  Be concise.  As a rule, I limit the most complicated affidavits (a sworn statement) to a maximum of 60 short, double-spaced paragraphs.  Most of the affidavits I produce are much shorter.  Recognize where you are responsible and think about the other party’s needs and fears.  Be sure to own your own mistakes and, above all, be completely honest.