Family Lawyer Calgary Blog
Lawyers are sometimes portrayed on TV as loud, abrasive, and frankly obnoxious. While it certainly makes for good and entertaining television, should real life lawyers act in the same manner? Of course not. There are many reasons for this but in our view the most important reason is that to give effective counsel requires a sincere and trusting relationship with each client. Lawyers who are quick to interrupt or show off their knowledge or talk down to their client risk their clients shutting down and not sharing important information. Just as good lawyers will take the time to listen and observe their own client they will do so with opposing counsel and opposing parties. There is a lot to be said for the things we can learn about others when we are sitting and listening. An excellent second reason to act with civility and courtesy is that reputation matters. In our experience you do not gain any points with colleagues or the judiciary if you are rude and abrasive. No one likes to be stuck in a room with someone who is treating everyone else in the room with disrespect. We truly believe that as lawyers we can be more effective by being respectful and focusing on legal issues as opposed to trying to bully other people into conceding our points.
Have you ever heard stories of incorrectly used commas costing a litigant millions of dollars? While this may be an extreme example of things going wrong if something is overlooked, the possibility of missing pieces or overlooking something of serious consequence to you is hugely increased by using a form Agreement that is not tailored to your individual and unique circumstances. I have had the misfortune of reviewing several Separation and Prenuptial Agreements that have been printed off the internet and some of my issues with them are as follows:
These are just my top six reasons why I think it is of utmost importance to meet with a lawyer to understand your entitlements and why it is crucial to have a proper contract created just for you and your circumstances upon which you may rely.
There are big changes coming to property owned by unmarried couples on January 1, 2020. Currently Alberta does not have written laws that specify how property will be divided on separation if it is owned by unmarried couples. For that reason, we have had to turn to principles of equity to figure out how dividing that property might work. We have had to rely on Judges to make determinations on essentially a case by case basis based on those equitable principles. As a result there is often uncertainty about how property should be divided in the event unmarried couples separate. This is changing. The Alberta Government recently passed legislation that imports the laws for dividing married couples’ property to adult interdependent partners (“AIPs”). This may result in surprising and unintended consequences for people who cohabitate and share some of their assets and/or liabilities. For example, did you know you do not have to be in a romantic relationship to become adult interdependent partners? Did you know that if you meet the criteria to be AIPs, you will have to share all property, including assets and debts acquired during the interdependent relationship, regardless of who purchased the asset or acquired the debt? The only way to be sure that your property will be handled in exactly the way in which you intend is to enter into a binding Agreement with legal advice. The Agreement itself is an investment in protecting your property and defining your expectations. We invite you to contact our office to discuss how you may best protect your property if you think this new act might apply to you.
Clients and potential clients often ask whether or not they will have their legal costs paid by the opposition if and when they are successful in their court case.
The idea of paying for an opposing party’s legal expenses is called the Law of Costs. The general rule in Alberta is that a successful party is entitled to costs to be paid by the unsuccessful party. This applies whether you go to a court application or a full trial.
There are two general ways in which the Court calculates how much cost to award to a party: Schedule C costs and solicitor-client costs.
All costs awards are discretionary, meaning that Judges are fully able to choose not to apply the standard rules and make whatever costs award they deem fair.
Schedule C Costs
The general rule in Alberta, and the starting point for any calculation of costs, are the Schedule C costs. Schedule C is a chart that is located in the Alberta Rules of Court and it outlines how much money a successful party will obtain for each step in a litigation. For example, if a client has had to file a Statement of Claim, they may be entitled to $1,000 in Court costs. Schedule C contains six different columns and the costs increase as the column increases, i.e. column one costs are the lowest and column six costs are the highest. For matters which relate to a set amount of money, such as suing a person for $250,000, the column is chosen based on the amount of money at issue in the lawsuit. The general practice in Alberta is to award column one costs for family law matters that do not relate to money such as parenting and custody.
Schedule C costs are very low. Schedule C costs do not fairly compensate most parties for the actual costs that they pay their lawyers to represent them in their legal matters. Parties should understand that the default in Alberta is to be awarded Schedule C costs and the likelihood that Schedule C costs will fully cover your legal expenses is extremely minimal. What this means is that even being successful in a lawsuit, you will still be paying money out-of-pocket to your lawyer.
A party can be awarded double Schedule C costs or some other multiplier. Sometimes, the Court will grant a party costs in a higher column or otherwise multiply the costs award because of bad conduct or an unreasonable position taken by the opposing party. The most common way to have a multiplier applied is to obtain double Schedule C costs because of an offer. Generally, where the successful party made an Offer to Settle to the losing party prior to the application or trial and the losing party should have taken the offer because the winning party is more successful in Court than the offer, double costs will be awarded.
Sometimes a successful party can be awarded solicitor-client costs. Solicitor-client costs are more closely related to the actual fees that you pay your lawyer to represent you in your legal matter. Awards of solicitor-client costs are rare and are difficult to achieve.
One of the most common ways to obtain solicitor-client costs is because you are in a dispute related to a contract and the contract specifically sets out that one party will have to pay solicitor-client costs if they are unsuccessful in any dispute in court. Sometimes solicitor-client costs are awarded because of extreme bad faith and bad conduct by the losing party. The conduct of the losing party has to be beyond the pale and extremely improper to merit an award of solicitor-client costs and so this is extremely rare.
There is a true art to preparing a witness list for your family law trial. There are always a great number of potential witnesses for any family law trial including expert witnesses. Most often expert witnesses in a family law trial are psychologists or financial experts. It is simply not a matter of calling every witness who may have something to say about your family law situation, but a careful cost-benefit analysis must be undertaken. We always consider three main factors: time, money, and invasion of privacy.
Clients and family law litigants always underestimate the amount of time it takes to hear witness testimony in a trial. What can be easily discussed over a short coffee at the local coffee shop will take four hours of trial time in a Courtroom. It is generally not in our client’s best interest to have extremely lengthy trials as additional trial time is very emotional, stressful, and expensive. In addition, trials that are not completed within the allotted scheduled time can cause excessive delays because more trial time with the same Judge can not easily be found in the Judge’s calendar.
We approach each new potential witness with one big question, “what will this witness add?” While many potential witnesses may have something valuable to say, the additional assistance of that testimony is often marginal. Consider whether a particular witness’ testimony is worth the cost of the additional day of legal services for that extra day of trial time.
The question of whether to engage an expert witness in psychological matters is rarely driven by financial considerations but often should be. Expert witnesses tend to be very expensive and you should be relatively certain that their testimony will be very helpful to your case prior to engaging them. Each expert witness is likely to charge between $10,000.00 and $40,000.00 in professional fees for their research, assessment of your case, preparation to give testimony, and days on the stand. Are you going to spend an additional $10,000.00 in legal fees to earn a Judgment of an additional $2,000.00? Do not forget that whenever an expert witness gets involved, it is likely their testimony will favour one party over the other. The party who is not favoured is likely to want to engage their own expert witness as well as potentially additional expert witnesses to either bolster or discredit the original expert report. This results in a battle of the experts which becomes very expensive, very quickly.
Invasion of Privacy
Another important consideration that is often overlooked by parties anxious to engage a psychologist to testify in their case is the true personal cost of the invasion of your family’s privacy. The question as to whether to obtain a psychological expert witness is a very important and strategic trial decision that should be made in close consultation with your family law lawyer. Remember that your lawyer can guide and advise you but is not the expert on your own ability to withstand emotional stress and pressure. You must work with your lawyer to make decisions that are comfortable and right for you.
A typical expert parenting report or assessment will involve many hours of clinical interviews in the psychologist’s office with all parental figures in the children’s lives as well as clinical interviews with the children. Psychologists often also interview the children’s teachers and other school personnel, doctors, activity leaders, and others who are involved with the children. The expert will delve into each and every parenting decision made by all parties and nitpick and critique parenting decisions and techniques.
The resulting parenting reports can be very difficult for you, your family, and your children. Unfortunately, it is often the case that when there are significant psychological problems uncovered by the parenting expert, there is ultimately little that can be done to repair the damage.
Before agreeing to any type of psychological parenting assessment, think very carefully about whether you are willing to open up your life to such scrutiny and judgment. The emotional toll of such involvement can be severe and long lasting.
Of course, these are just some of the many considerations regarding potential witnesses. Decisions about choosing witnesses are critical and should be carefully made with your lawyer.
Recently, we took the bold step of cancelling our fax service. This is a big deal for a law firm. Many of our colleagues in the legal profession have told us this will not work. They have told us we will not be able to continue to offer the level of service we are used to providing because Judges will refuse to communicate with us without a fax number. We can proudly say that we did cancel it anyway and the sky did not fall. In fact, we have had numerous letters from the Courthouse received by email. We are happy to send over our Court runner to the Courthouse to pick up any letter or document addressed to us which cannot be sent by email. We have never been requested to do this.
Disconnecting our fax service was an important symbolic gesture for Smith & Little LLP. We want to be at the forefront of modernizing the practice of law. Getting rid of the fax is just the beginning!
There continue to be a number of lawyers who insist that the only proper way to serve Court documents is by fax. This is not true. Lawyers can only serve documents by fax on our office if we provide a fax number as an address for service on our filed Court documents. I can say for certain that no such fax number has been placed on a Court document under our supervision in at least three years. This means that every time a lawyer tries to serve our office by fax, they are not providing good service under the Rules of Court. Conversely, our email address is on every single Court document we file which makes it a valid method of service under the Rules of Court.
The Alberta Court of Appeal seems to agree with Smith & Little LLP. In fact, The Alberta Court of Appeal is spearheading a project to make the entire filing process electronic and we were told in a recent seminar that it is moving to an email only system where they will no longer send or receive faxes from lawyers. We say it is about time!
Limited scope legal services or unbundling means that clients can pick and choose certain services a lawyer may provide to assist with their matter instead of retaining a lawyer to provide all services, which may include communicating with the other party or other lawyer, preparing correspondence or letters, preparing Agreements or Court documents, attending with you at a mediation or settlement meeting or appearing on your behalf in Court. If a lawyer has agreed to perform all of the services as they are needed, that lawyer is retained on a full services basis. Sometimes a matter may not require a full-service model and it may be possible to cherry pick the services you think you could use the most help with and retain your lawyer just for those services. For example, you may be fully prepared to negotiate your own property or parenting matter with the opposing lawyer but before doing so, you want to ensure that you have all of the important information and legal advice about your matter. You may wish to have an arrangement whereby a lawyer will provide you with ongoing consultations so that you have the information that you need to make informed decisions about your negotiations. A further example may be that you feel confident presenting your own matter before a Judge, but you are not certain about the formalities observed in the Courtroom. You may wish to seek guidance or coaching form a lawyer about Court decorum and how you should act. There are many different ways to break it down and not all matters are appropriate for limited scope retainers. Smith & Little LLP is happy to provide limited scope services when appropriate and we invite you to contact us if we may be of assistance.
We are often asked whether our clients must come to court for their court date and when we sometimes tell them that it is not necessary, they ask whether they should come.
The general rule is that a client must be present for all proceedings in the Provincial Court – Family Division. Sometimes the client can be excused ahead of time if it is agreed that the court appearance will be of a very minor administrative nature. This must be requested at the previous court date and so it is important to think ahead. Clients in Provincial Court will sit at the counsel table with the lawyer and will sometimes speak directly to the Judge, although this is rare. In addition, clients must be present in Court at all levels of Court when their matter is going to a trial and they will have to testify and give evidence. Our clients who are preparing to testify will have trial preparation meetings with us for several hours where we will talk to them about what to expect and how witness testimony is given in a Courtroom.
In addition, there are a number of types of meetings held at the Courthouse which are different types of mediation and which therefore necessitate the client’s presence. Some of these include a Judicial Dispute Resolution (JDR), Dispute Resolution Officer session (DRO), Early Intervention Case Conference (EICC), mediation, and Case-flow Conference. If you are scheduled for any of these types of proceedings, you must be present.
Many of our clients have proceedings in the Court of Queen’s Bench of Alberta. This is where all divorce proceedings are held. Clients do not need to be present for most proceedings in the Court of Queen’s Bench other than a trial at which they will give testimony. This is one advantage of hiring us to represent you. You can continue with your day-to-day activities, and we can deal with your legal matter. We almost always advise clients that it is not necessary for them to attend, but they are of course always welcome to attend. Justices should not take into consideration whether or not the client is watching the proceedings when making their decision. Sometimes there will be some strategic benefit to the client attending or not attending, but it is very rarely the case that we see some strategic benefit and advise the client one way or the other. Sometimes we will want the client to attend if there is a matter that involves fast-moving negotiations. This usually means that we may want to ask the client for last-minute instructions and it is far easier to do this if the client is present at the Courthouse with us. If clients choose not to attend at their Court date, we ask that they are available by telephone during their Court date so that we can phone them for instructions if necessary.
Most lawyers are now listed on Google and have a number of reviews and comments. Reading about the experiences other clients have had with that lawyer can be very helpful to check if that lawyer is a good fit for you. Lots of lawyers also list testimonials on their website and may be reviewed on websites such as www.yelp.ca and www.lawyerratingz.com.
All active lawyers in Alberta are listed in the Law Society of Alberta Member Directory at https://lsa.memberpro.net/main/body.cfm. The directory will give you helpful information such as the lawyer’s telephone number and address as well as a record of how long they have been practicing law and whether they have any recent or outstanding disciplinary proceedings.
You may be surprised to find out how many of your family, friends, neighbours, and colleagues have used the expertise of a lawyer in the past. Word of mouth from people that you trust is always a good way to judge whether a lawyer may be a good fit for you.
In the fall of 2018, the Court of Queen’s Bench of Alberta introduced a new program called the Early Intervention Case Conference (“EICC”).
The EICC is a program aimed at diverting potentially high conflict family matters, especially those involving children, into an early resolution program. The program consists of attending at a one-hour session with a Justice of the Court of Queen’s Bench of Alberta. The session is essentially mediation, but it is highly directive meaning that it takes place in a Courtroom and the Judge sits on the dais, or raised platform, and directs the parties as to how their matter might be resolved. The session is private as the Courtroom is closed to the public and neither party is permitted to order a transcript of the proceedings.
When we first heard about this program, we were told that the early results were an over 80% success rate of settling matters in dispute. We were very surprised to hear this program would be so effective, but we have now had the opportunity to attend several EICCs and can say that we are big fans of this program! The program is very successful in forcing the parties to narrow the particular issues in dispute and come to sensible resolutions prior to engaging in highly stressful and expensive lengthy litigation. It is now our practice to evaluate all files within our office and new clients who come through the door for suitability for an EICC. Where we believe that the EICC might be effective at resolving the dispute, we immediately try to get agreement to schedule an EICC and where there is no agreement we often recommend asking the Court to order the parties to attend at an EICC.
Only time will tell if this program continues with its amazing success rate, but we have every reason to be optimistic.
We have heard from some clients who prefer to hire a lawyer in their local neighbourhood. “It is so much more convenient,” they tell us. “There is free parking,” they tell us. All of this is true but there are hidden costs to your local neighbourhood lawyer that are included in our fees at Smith & Little LLP.
Our office is conveniently located right across the street from the Courthouse. This is an inconvenience to you unless you work downtown. When you come to see us for your appointments, you will have to pay expensive downtown parking rates that no one likes to pay. However, when I have to go to Court on your matter I will charge you only for my expertise and services. I will not charge you my parking at the Courthouse (expensive downtown parking). I will not charge you for my time travelling to and from the Courthouse (if you have read our other blogs you know we do not charge by the hour anyway, but most lawyers do). When something unexpected comes up on your file and we have to run in and see a Judge right away, or run to the Courthouse to get a document filed on an urgent basis for your file, or have to run to the Courthouse to do a search of your Court file, we can do so with relative ease and 10 minutes before the Courthouse closes – we are right across the street. We may also have to attend settlement meetings, mediation sessions or arbitration sessions, most of which are all held downtown as most of the professionals involved in these matters are located downtown. Legal services are expensive – you do not need to pay extra for your lawyer to travel to all of the places that she needs to go to represent you.
The truth is I will have to go to the Courthouse on your file more often than you will have to come for an in-person meeting at our office. Because we are located Downtown and most meetings, court appearances and other places we need to go to do our jobs are also conveniently located Downtown, you will find that we are in our office more often than if we were located in Airdrie. What this means is that you can reach us and we can be responsive to your questions. You will not call our office to be told that we are in the car travelling to and from Court.
At least 50% of the lawyers that we deal with on a regular basis on the other side of files are also located in downtown Calgary. This means that if we need to have a settlement meeting with the other lawyer or otherwise see that lawyer, there is limited travel time involved. Most frequently, we send couriers with documents to the other lawyer’s office. A courier within the Downtown Core is less than $3.00. If you are located in Airdrie and have to send a courier to the opposing party’s downtown lawyer, the charge would be $10.00 to $20.00. These charges may seem small, but they do add up. It is simply more centralized and more convenient, which translates into less expensive for you to have your matter dealt with within the downtown core.
Dealing with a separation or divorce can be extremely stressful. Your working relationship with your lawyer should not add to your stress. There are many articles and blogs out there focused on how lawyers can provide excellent service to their clients and we want to be excellent service providers. In order for us to be at our best it is certainly helpful if our clients work well with us too. If you have ever wondered how to make the most out of your relationship with your lawyer, I might suggest the following tips:
If you and your former partner are having difficulty communicating with respect to parenting your children or discussing child and spousal support, the “BIFF” method may assist you. BIFF is taken from the book, “BIFF: Quick Responses to High Conflict People” written by Bill Eddy. In short, BIFF stands for “Brief, Informative, Friendly and Firm”. Keeping these words in mind when preparing your texts or emails may help de-escalate conflict in difficult situations.
Parenting After Separation is a free seminar that addresses the financial, emotional, and legal issues with respect to children and parenting in separation and divorce. This seminar is booked by calling 587-999-9242 or by emailing firstname.lastname@example.org. This seminar can also be completed online as a three-hour eCourse at http://pas.albertacourts.ab.ca.
This seminar offers information to parents about the separation and divorce process, the effects of separation and divorce on children, techniques for communication, and legal information that affects parents and children. There is no cost to complete the course.
There are other courses available which you may also find helpful, being Focus On Communication in Separation and Parenting After Separation for Families in High Conflict. These courses are also available at no cost to you.
In a world where legal information seems to be everywhere and the internet is chock full of helpful suggestions to “do your own divorce” it may be tempting to go it alone. We have had many clients take the first steps of their divorce on their own and come to regret it. It is all too easy to make significant errors early on that wind up causing more stress, costing you more money, and wasting your valuable time. It is completely understandable to us that people want to engage in the process and try and minimize the expense associated with divorce matters but the simple fact is you don’t know what you don’t know. Having access to legal information is only one piece required to minimize expense and time in resolving a legal issue effectively. It is most effective to work with a lawyer who can provide a wealth of knowledge and experience to assist in working towards resolution. We are of the view that two minds are better than one and having a partner with the experience and knowledge to help you with your matter and move it along expeditiously ensures you will save that time, money, and stress. It is that philosophy, two minds are better than one that led to the partnership between Kelly and Christine and if you choose to work with us then you will have the benefit of doubling down on the knowledge and experience lawyers can provide.
Lawyers are people too and we all have different personalities, backgrounds, education, and experience levels that differentiate us from other lawyers. Choosing the right lawyer can be a daunting process as it is your lawyer who is entrusted with matters that are extremely important in your life. It is of utmost importance that you are able to establish a working relationship based on trust with the lawyer with whom you choose to work. If I were choosing a lawyer for my own legal matter, the following three considerations would top my list.
Particularly with family law matters, topics that will be discussed between you and your lawyer can be sensitive and will require candid and sometimes difficult discussions. If you are not comfortable immediately speaking with a lawyer then that lawyer is perhaps not the right one for you. In order for us to do our jobs well we need to understand your thoughts, your hopes, and your fears moving forward so that we are in the best position to be able to assist. Sometimes information that is not obviously relevant can help me in choosing what the best method of resolution may be for you. For example, someone leaving a relationship that was marred by domestic violence may not be willing or able to sit in a mediation session across the table from their spouse to negotiate property matters. Having that knowledge assists in crafting different negotiations or resolutions that will accord with each client’s individual needs.
By this I mean not only does your lawyer have the requisite knowledge in the particular area of law for which you need assistance but is that lawyer able to effectively communicate their knowledge to you. It does not matter how much that lawyer knows of the law if you are not able to understand the information being provided. It is our job as lawyers to make sure that each client has all of the information they need to understand the pros and cons of any decision they make so that they can confidently be in charge and direct their matter by giving us instructions to follow. Having a complete understanding of the legal issue you face together with the choices and options at your disposal will give you the confidence you need to make decisions that affect your life the most.
If you have that immediate comfort level and feel your lawyer is knowledgeable and able to assist you, you will likely be presented with a Contract for Legal Services or Retainer Agreement that will set out the terms of your working relationship. This document is an important opportunity for you to determine whether or not your lawyer is in fact a clear communicator and is completely transparent with respect to fees. Often lawyers bill by the hour. Meaning they will set their hourly fee, for example $400 per hour, and they will usually bill at 0.1, or 6 minute increments. A lawyer may request a retainer of $3000 or $5000 to cover those fees. Unfortunately, that is often the most information a client will receive. It is impossible to know how long that initial $5000 will last before it is exhausted and the lawyer asks you to provide a further retainer. Clients do not have a good understanding about how long steps will take on their matter. For example, does it take a lawyer ten minutes or two hours to prepare a Statement of Claim for Divorce? Having a transparent Retainer Agreement with specified fees and expectations allows you to budget and allows you to make informed choices about different options and the costs associated with each option you may pursue in your matter. Finally, the retainer arrangement is also an opportunity to understand the expectations you may have of your counsel. Lawyers should be prepared to commit to clients with respect to communication guidelines; for example, how quickly will an email be answered? How far in advance do appointments book? When will my phone call be returned? Asking all of these questions and more will help you choose a lawyer that is best suited to work with you and assist with your legal matter.
The best lawyers and the most effective lawyers are those who are well prepared and have an opportunity to ensure that they have considered all of the relevant issues and have a complete understanding of your legal matter. It is not uncommon for us to see people start off on their own as self-represented litigants as they are unable or unwilling to utilize the services of a lawyer. I can certainly appreciate that legal disputes are often expensive, however, when one chooses not to retain someone until the last minute it is very difficult for the lawyer to provide you the best overall representation, service, and work product. It becomes more of a challenge for the lawyer to have a deep understanding of all of the important pieces of your legal puzzle and it makes our jobs significantly more difficult. You may be surprised to learn that retaining a lawyer early on often serves to save you money in the long run. Where a lawyer has time to contemplate alternative means of resolving your legal matter and brainstorming alternatives to litigation, time is saved which means that you save money.
The second major issue with waiting until the last minute to seek legal assistance is that you will not know whether or not your materials are sufficient to give you a good shot at being successful in your matter. By way of an example, we are often called by self-represented litigants who have scheduled their own court matter to be heard. They will contact us a few days before that application and it is only at that point that we have an opportunity to review the materials provided. The materials are often prepared by very intelligent people however unfortunately as they have not received the legal training required to prepare excellent legal documents, there are often significant pieces that are missed. Missing pieces of important evidence is very easy to do and will significantly impede chances of success in court.
Some errors that are made without experience are irreversible and can cause long-lasting impact. When you act on your own behalf the risk to you is significantly increased. There are many good reasons to hire experts and it is trite to say that one should not do one’s own surgery, nor should one represent themselves for their own legal matters.
When choosing a family law lawyer to assist you with your separation, your divorce, parenting or support issues it is important that you choose one who is very familiar with family law and all that it entails. Various areas of law such as personal injury, criminal and immigration law are all very complicated areas as is family law. It is extremely difficult if not impossible to be up to speed with all of the ongoing developments in several areas of law. When you deal in primarily one area of focus day in and day out you are the first to know of any upcoming changes and adapt accordingly in addition to growing one’s knowledge base all the time. If a lawyer dabbles in many different areas, it may be that the lawyer cannot keep up with all of the developments in each area of law which poses a risk to the client. In the alternative it may also be the case that they will endeavor to get up to speed in that area of law for their client files but the client is billed for the lawyer’s time to educate the lawyer in that area. For these reasons finding a lawyer that handles primarily family law for your family law matter is likely the most prudent course of action.
Perhaps not surprisingly it is advisable to seek legal advice as soon as you are aware that you may be encountering a legal dispute. From my perspective it seems that sometimes people are reluctant to contact a lawyer for fear of escalating a situation. I like to tell prospective clients that no matter what happens they remain in the driver’s seat. Your legal matter is yours alone and I take instruction from you. This means that no one ever needs to know that you sought legal advice unless you decide to tell them. For this reason, you should feel comfortable in contacting lawyers knowing that no one will ever know you did so. True peace of mind comes from having the knowledge required to make informed decisions about matters that affect you.
It is commonly acknowledged that cohabitation is on the rise. More and more couples are choosing to move in together without tying the knot. Whether you are moving in together or tying the knot, it is important that individuals enter these economic relationships with their eyes wide open. During my years practicing Family Law, I have learned that there are many widely held myths about cohabitation and property entitlements for unmarried couples. For example, I have often been asked in my practice whether each partner is entitled to 50% of the property once couples have lived together for a period of six months. The answer is almost always no.
In Alberta, property entitlements for individuals residing together in romantic relationships is certainly not straightforward. It may surprise people to learn that even if you think you are taking all the correct steps to ensure your appropriate entitlement, that may not be the case. For example, two people begin dating. At that point, they are each residing in their own properties but decide to take the next step in their relationship and move in together. They find a house that they fall in love with, they each contribute to the down payment for the purchase of the property, they are each registered as owners in joint-tenancy on Title and they are both equally liable for the mortgage obtained for the purchase of the home. The couple lives together for many years and they have two children together. Both spouses work full-time jobs and additionally, the mother is trying to set up her own business so she works a lot of evenings and weekends. Accordingly, the father is left to handle more of the household and family responsibilities, although it cannot be said that the mother is an absent parent at all. In circumstances such as these, it would not be surprising if you were to assume that upon separation both of these parents would be entitled to 50% of the equity built up in that home. This assumption may be wrong. It is an unfortunate state of our current law that if two roommates purchase a property together, being friends, family members, or unrelated parties, the law of property would apply to them and likely they would both be entitled to share in the equity of the property. If the purchasers are involved in a family relationship, the analysis becomes much more complicated when determining the property entitlement, unless the parties have executed a Cohabitation Agreement. Surprisingly, the Courts in Alberta have frequently decided that the mother in the scenario above, without a Cohabitation Agreement, is entitled to less than 50% of the family’s assets on separation.
A Cohabitation Agreement can be hugely beneficial to people as it sets out expectations and rules with respect to who is entitled to different forms of property and how a couple will arrange their finances. People with assets, a business interest, or who are contributing to a shared property may wish to prepare and execute a Cohabitation Agreement before moving in together.
Information you share online is never private.
The information you share online about yourself, your partner, your children may be used as evidence in your family law matter. This means that your comments, photos, and posts can be used to show evidence of parental gatekeeping, poor parenting skills, inappropriate judgement or substance abuse. It really is true that a picture is worth a thousand words!
We have prepared some guidelines to assist you in keeping this type of damaging evidence away from your case. To be safe, follow the guidelines below:
Family law matters can often be emotionally charged and difficult to navigate. Whenever you are communicating about anything at all, particularly in writing, you must ensure that you are on your best behaviour. Children will pick up on negative emotions and you should always ensure that you speak kindly of your child’s other parent.
Posting negative comments about an ex-partner or other involved parties can counteract attempts to find amicable resolutions and can harm the character of the person posting the content. Stay positive on social media, and never post or send anything that you wouldn’t want brought up in court.
Also remember that if you delete something you know to be incriminating or damaging, opposing parties could argue you are destroying evidence. Keep it clean and positive from the start.
Always log out of any online account before leaving your computer.
Use strong passwords that are a combination of numbers and words and will not easily guessed.
Many social media accounts now offer two- factor authentication where each time you log-in on a new computer or phone, you will have to input a code which is sent to your cell-phone. This prevents someone from guessing your password and logging onto your account from their own computer. Change the password immediately for any account that you suspect may be compromised.
There is no such thing as privacy or anonymity on the internet. When you create an account with platforms such as Facebook and Twitter, even messages between yourself and your friends can be used, as can any old photos or negative posts and comments that you’ve made in the past.
Take the time to read all privacy settings and be extremely careful about how public your posts are.
Remember that if you comment, like, or share a post on someone else’s social media account, all of their friends can also see that you have done so. If your friend’s account is public, then anyone with access to the internet can see your post. This way friends of friends can access what you have posted online. If you wouldn’t want it seen by an opposing party, don’t post it at all!
Be careful to use appropriate communication. Discuss confidential matters over the phone or in person instead of posting or messaging about it. Have these discussions out of the home where you can be sure that your child cannot accidentally overhear you.
For many people facing the breakdown of a relationship or other family law matters it can be difficult to decide whether to hire a lawyer or to represent themselves and try to resolve their matter “outside of the formal system.” Even if their matter does end up before the courts, many people are unsure about hiring a lawyer for many reasons. A few of those reasons are that lawyers are seen to be expensive and a perception that the parties involved know their family better than any lawyer possibly could. It can be difficult to conceptualize the value proposition a lawyer offers as we are paid in large part for the knowledge inside our heads more than for a concrete product. Finally, as our society moves more and more towards freedom of information and a do-it-yourself approach to everything from home renovations to legal representation, the courts and governments are increasingly offering services to assist people in representing themselves in court. Most good lawyers, however, would tell you that they would never represent themselves in their own matter. So what is it that lawyers know that non-lawyers do not? This post explores some of those secrets and the key reasons why hiring a lawyer is your best bet at navigating this difficult time in your life.
Would you seriously consider performing your own surgery or plumbing? If like most people you answered no, then why would you consider presenting your case to a court?
A high standard of training and education is required to become a lawyer in Alberta. Most lawyers in Alberta have some type of 3 or 4 year bachelor’s degree and all lawyers in Alberta have a 3 year degree in law (or equivalent) and 12 months of on the job training under the supervision of senior lawyers (called articles). I have a 4 year bachelor’s degree from the University of Toronto, a 3 year undergraduate law degree from the University of British Columbia and a 1 year Master of Laws degree from the London School of Economics. In addition I spent 12 months learning the practice of law under the supervision of senior lawyers during my articles. In addition to these educational and training requirements, in order to become a lawyer in Alberta students are required to successfully complete competency based coursework during their articles. Even after becoming a lawyer, lawyers are continuously learning. Since becoming a lawyer in 2012, I have continued to learn on the job by working with senior lawyers, working on other client’s cases and networking and brainstorming legal issues with others in the legal community. Like most lawyers in Alberta I also participate regularly in continuing learning courses and seminars on topics relevant to my areas of practice. I also continuously read new cases in these areas of law as they are released by the courts, read articles written by law professors and other lawyers, and notices to all lawyers issued by the courts and the Law Society of Alberta.
Lawyers are also highly regulated and are held to a very high standard of professional ethics and conduct. We are guided and bound by our Code of Conduct as well as the Rules of the Law Society of Alberta. One of our mandatory duties is that we owe our clients the duty to provide competent legal services. What this means for you the client, is that I have a mandatory obligation to be knowledgeable about the area of law in which I am providing you services.
Finally, like most lawyers I practice law full time. Also, like most lawyers I practice in a few discrete areas of law. This is all I do, 40+ hours per week. I know the steps involved in taking your family law case from beginning to end. I know the various options available to resolve your case. I know the correct format for your court documents and know the legal test the court will apply if your matter ends up in front of a judge. If I do not know the legal test off the top of my head, I know how to quickly and easily research the legal test. This allows me to understand very quickly what facts are relevant to the judge in deciding your case and which are not. Presenting only relevant facts to the judge makes for a polished, concise, and efficient presentation of your case.
Non-lawyers do not have most, if any of the qualities outlined above. Non-lawyers typically interact with the legal system a few specific times throughout their lives: when they buy a home, when they go through the breakdown of a significant relationship, and for wills and estates matters. Non-lawyers who own or run businesses may also deal occasionally with corporate lawyers and tax lawyers. These brief interactions do not equip the non-lawyer to manage a family law case from beginning to end.
Many self-represented litigants are very intelligent and educated people. They may have a bachelor’s degree like any lawyer. Some may even have advanced degrees in non-legal fields. No doubt some of these parties have the intellectual capacity and other qualities required to successfully practice law. However, as they are not lawyers, they do not have a 3 year law degree, they have not spent 12 months of on the job training under the supervision of senior lawyers, they do not attend continuing education seminars, and they do not keep up to date on the latest developments in the law by reading new cases as they are released by the courts. Finally, they lack the experience and understanding of the process gained by working on hundreds of other family law cases.
2. A Lawyer can Help you Achieve Finality and Certainty so you can Move on with your Life
Many self-represented parties find themselves stuck in an endless mountain of red tape and court proceedings. A lawyer has the knowledge to educate you about your options which will empower you to make informed decisions and to help you to tailor your goals to fit within what is achievable. Self-represented parties may be stuck in an endless cycle of court proceedings because they do not understand the process or are taking a position that will never be successful. A lawyer can sometimes walk into a situation like this and resolve your matter more quickly than you ever thought possible by guiding and directing your court matter towards a resolution.
A lawyer also knows that court is not the only option to resolve family law matters. A lawyer can help guide you as to whether your situation requires a court proceeding or whether it can be resolved in another manner such as negotiation or mediation. Lawyers have certain instincts about what may be effective in your particular case gained through their experience in working on similar cases.
Even those cases where people part ways on decent terms and can agree between themselves on how to separate assets are best served by engaging the services of a reputable family law lawyer. Did you know that a do-it-yourself separation agreement signed without each party obtaining independent legal advice is unlikely to be upheld by the courts in the future? Hiring a lawyer now when everyone is on relatively good terms and is in agreement with the contents of the agreement can save you much more expensive legal bills in the future when that good relationship breaks down for whatever reason and one of the parties no longer wants to stick to the terms of your agreement. A properly drafted agreement, created for your specific situation by a lawyer familiar with your circumstances and signed by each party with a certificate of independent legal advice, which only a lawyer can provide, is your best security and defence. With that type of agreement in place you can move on confidently from your past relationship and make a fresh start.
Finally, while nothing in family law is ever truly settled or final, especially where minor children are involved, a lawyer has the foresight to help you design and negotiate solutions that will work for your family into the foreseeable future, letting you move on with your life. For example, a lawyer will remind you to think about and make provision for important future milestones such as “where will the children be enrolled in school?” These questions may not come to mind for a self-represented litigant because it is not the urgent important issue to be decided right now. This means you will be back arguing or in court when school enrollment comes around. Lawyers use their experience gained from many years of practice and other cases to guide you towards resolving the issues that most often cause families difficulties down the road. On this type of file, it is my goal to help you come to a resolution that works for your family not just now, but into the future and to get you to a place where you can move on and no longer have lawyers or judges in your life. This result is achievable in most cases but it can be very hard to get to without the assistance of a lawyer.
3. A Lawyer has Time to Devote to your Case
This point may seem hard to believe or be counterintuitive because lawyers are often very busy and some can be hard to reach. However, that is mostly because of the nature of our work, not because we do not have time to devote to your case. A lawyer can be hard to reach because they are in client meetings, in court, mediation or settlement meetings with their clients, or are spending quiet time performing legal research or other work on their client’s files.
In addition to the lawyer themselves, most lawyers draw on a number of other staff and professionals to manage your family law matter. Most lawyers will have legal assistants, court runners to file documents at the courthouse and other government offices, and relationships with other experts who may be required to resolve your matter such as tax lawyers, mediators, realtors, and accountants. Some lawyers also use the services of external contract paralegals, external research lawyers or other non-lawyers who perform legal research, and others. Some lawyers will have articling or summer law students and depending on the size of the firm will have partners and/or associate lawyers. Most lawyers, whether working formally with other lawyers or not, have the ability to draw on an extensive network of other lawyers to discuss and brainstorm their files where a difficult or unusual legal issue appears.
The lawyer has set up their office and an entire structure to help shepherd your family law case from beginning to end. The lawyer and their staff spend 40+ hours per week helping their clients move their cases towards resolution and ensuring that resolution is properly documented to provide the clients with a level of comfort to be able to move on with their lives.
You, on the other hand, have better things to do with your time. You have a job, you want to spend time with your children, you want to get out of town for the weekend. Managing a family law file is very time consuming, especially for a self-represented litigant who is unfamiliar with the system. As one very simple example, filing documents at the courthouse may take 2 hours out of your day and can only been done during business hours. Unlike you, the lawyer’s court runner knows exactly which counter your documents need to be filed at and he is filing documents for 10 different cases at the same time leading to efficiencies that you can never achieve on your own as you only have one case. By retaining the lawyer, you gain access to this valuable service and have just saved yourself 2 hours. At my law firm, I will charge you only $10 for each document filed by my court runner in your case which I believe is an excellent value proposition. Other lawyers have similar charges for court running services.
There are also many steps that your lawyer can take on your matter on your behalf without you needing to be present at all. This includes some court appearances. If you have been representing yourself in your family law matter and you retain a lawyer to represent you, you will immediately see a huge difference in the amount of time your case takes out of your day-to-day life.
4. Your Lawyer is Impartial
This point should not be overlooked. This is probably the number one reason lawyers would never represent themselves but also probably the least well-known or understood reason to hire a lawyer by the general public.
Family law is one of the most emotionally charged areas of law as these are some of the cases that affect people’s lives most directly. Most people are not involved in a family law case because of a pleasant life event. We are most often dealing with the breakdown of a relationship and negotiating very difficult situations often times involving children. Even financial issues in family law are emotionally charged as the separation of assets and support payments affect what people’s lives will look like into the future. It is understandable that clients with family law cases are dealing with a range of raw emotions. Some of those emotions include hurt, anger, disappointment, vengefulness and fear.
Simply put, in this emotional state you cannot see the forest for the trees. A lawyer can. While a lawyer can be empathetic with the client’s situation, a lawyer cannot allow themselves to become emotionally involved in your case. In fact lawyers take this duty so seriously that our Code of Conduct dictates that we must decline to represent you if we cannot be impartial (usually because of a pre-existing relationship with you) or withdraw from representing you if we become emotionally involved for some reason and cannot provide you with impartial representation.
A lawyer has a duty to look out for your best interests. As part of that duty a lawyer will help educate and guide you as to what you can realistically expect in your case. A good lawyer will be tough with you when you need it and call you out on taking an unreasonable position from a place of fear or vengeance. At the end of the day, a good lawyer will help you to the best possible outcome taking into account all of the circumstances of your unique case and put you in a position to pick up the pieces and move on with your life.
5. A Lawyer may Save you Money
This final point may also seem hard to believe but it is true. Yes, lawyers are expensive, although maybe not as expensive as you think. A good lawyer will provide excellent value for the money spent and the decision to hire a lawyer may save you money in two key ways.
Firstly, a lawyer may achieve a better result for you than you could have achieved on your own. There are many financial aspects to family law cases, mostly in the areas of division of matrimonial property and support payments. A lawyer will be familiar with the law and arguments which may apply to your situation and assist you in achieving a good financial outcome. For example, did you know that there are special child support considerations for payors with incomes over $150,000? Even assuming you successfully researched the applicable law and arguments which would support your case, a lawyer will use their experience and skills to present your case to the court in a more polished and succinct manner which may lead to a better outcome than you could have achieved. A lawyer may also offer suggestions on how to structure financial settlements in ways that will lessen the impact on your day to day life. You may not have thought of these alternate structures without the assistance of a lawyer.
Finally, a lawyer may assist you in avoiding expensive awards of court costs. Did you know that in Alberta the general rule is that a successful party in a court application, hearing, or trial is entitled to “costs”? Costs awards in Alberta are at the discretion of the presiding judge but there is a standardized chart of costs which the courts often follow. Costs awards are often in the range of $500 for a simple application to thousands of dollars in a trial. For context, losing a one day trial will often result in a costs award made against you in the range of $5000-$10,000. A lawyer will help you to avoid these expensive orders being made against you in many different ways. Firstly, a lawyer will remind you of the potential of a costs award being made against you when discussing potential court applications. A lawyer will also advise you against bringing court proceedings you are sure to lose and will also advise you against taking unreasonable positions. You may not be able to easily identify court applications that you are sure to lose or positions that are unreasonable because you lack the knowledge of the law and the experience of a lawyer. Finally, a lawyer will help you to mitigate the risks of costs awards by encouraging you to make settlement offers or otherwise resolve your issue before a costs award is made against you.
Kelly and Christine are proud to share the exciting news that they will be the faculty members for the Business of Running a Law Practice Seminar. The seminar will be held on October 18th in Calgary, and October 25th in Edmonton. Taking you beyond the legal field, this seminar will focus on the business of running a law firm and legal practitioners in all stages of their career will benefit from attending.
From recruitment to retention, advertising to alternative fee structures, and everything in between, Kelly and Christine are excited to share the valuable lessons they’ve learned through their solo practices as well as through running the operations of the rapidly- growing Smith & Little LLP.
This exciting program will be chaired by David Tupper of Blake, Cassels & Graydon LLP
We are pleased to announce that we are now offering family law services on an exciting new value based fee pricing structure. This post discusses legal billing generally and my views on alternative billing structures as well as explains the two new types of value based fee pricing structures offered at Smith & Little LLP.
As a lawyer I am passionate about offering my clients value, professional services, integrity, and an ability to get things done. The standard billing model for legal services continues to be the billable hour model, especially in family law. The billable hour is a poor model for both the lawyer and the client. The billable hour rewards the lawyer for inefficiencies and presupposes that the client values the lawyer spending additional time on their file rather than the results accomplished. Why should you pay a junior lawyer on a time spent basis for getting up to speed on the law? Conversely, why should the experienced lawyer be punished for having expertise on the law related to your matter? Presumably as a client you value that knowledge and experience.
My biggest complaint with the billable hour model is that it is very difficult for clients to understand. Clients have a very difficult time anticipating the true amount of legal fees they are incurring as their matter moves forward. I truly believe that when a lawyer tells a client their hourly rate, it has little to no meaning to the client as the client has no idea how to assess how many hours the lawyer might spend on their file. Even among two lawyers charging the same hourly rate, total fees can vary wildly depending on their individual practice styles.
Since founding Smith & Little LLP, Christine and I have been driven to provide sensible and predictable billing practices and policies to our clients. Unlike many law firms, we do not charge for internal photocopies, printing, faxes, or long-distance telephone calls. These may seem like minor details but they can add up to hundreds of dollars on legal bills. We believe in providing our clients value both by providing exceptional service to them and by providing them with reasonable and fair bills.
What we do not believe in is nickel-and-diming our clients and generating profit through alternative business lines such as photocopy services. There are very excellent people in the business of providing photocopy services and we utilize their expertise to offer our clients value. In short, we are a law firm and not a photocopy shop. This is a fundamental belief which sets us apart in the way we do business.
Lawyers have for decades been talking internally about how to abandon the billable hour. However, lawyers as a group are very conservative and reticent to change. It is very easy to continue doing things the way they have always been done even for those of us who believe strongly that the billable hour is inefficient. It has traditionally been seen as very difficult to offer services in family law or litigation on a flat fee basis because these types of files are very unpredictable. Unlike a real estate file where it is easy for the lawyer to assess from the beginning exactly what steps need to be taken and how much time the average file will require to complete, a family law file can veer off in any number of directions and is highly contingent on the cooperation of the opposing party which can be difficult to predict.
We have spent a great deal of time preparing a very detailed value based fee price list and structure in order to offer our clients this alternative billing model on every kind of family law file, especially those which are very difficult, complex, and hard to predict. We believe very strongly that this model is a step towards the future of the legal profession as it provides for the delivery of legal services in a manner that serves our clients and their desire to know what they will pay to be represented.
You may have read my previous post on the topic of the value of representation in family law. As lawyers we spend a lot of time asking ourselves why people would pass up the opportunity to have competent legal representation and choose to take the great risk of representing themselves on such important matters. I believe this trend is partially driven by public perception that lawyers are unaffordable. I choose to believe that most potential clients understand at least in part the professionalism and skills that a lawyer brings to their matter. What they do not understand equally well is the value proposition being offered by the lawyer. As lawyers, this is in large part our fault. Our fees and bills are an opaque black box and we do nothing to illuminate the inside of that box for potential clients who have heard only horror stories of lawyers’ bills leaving their friends and family in endless debt. This is not good enough if we want to continue to serve the public and show potential clients the value that we can offer. While family law files are unpredictable, as an experienced lawyer I have a pretty good idea of how much your fees will be depending on which course your file takes. This is the information imbalance between the lawyer and the client that our new fee structure aims to erase. While the lawyer’s hourly rate has little to no meaning to the client, the lawyer has inside knowledge as to what it usually takes to complete certain steps in the litigation process.
For all of the reasons above Christine and I are very excited to offer our new value based fee services to the public. They bring to the table fairness and transparency for both the firm and the client. We cannot and will never be able to control the actions of an opposing party in a family law file. At the end of the day, if the other party is entrenched in their position and insists on your matter going to trial then your matter will have to go to trial or you will have to concede your position and agree to their demands. What we can do though is tell you from the beginning how much money we are going to charge you for each step in that process and each day that your matter is in trial. We believe strongly in empowering our clients to make informed decisions on all aspects of their matter. This fee structure is a step along that path and will give our clients that crucial information necessary to accurately assess the cost-benefit analysis of continuing along the litigation path or settling at each step of the proceedings.
Smith & Little LLP Value Based Fees Explained
We offer two types of value based fee rates on family law services: a la carte pricing and prix fixe pricing. Our goal is to offer clear, transparent, and predictable pricing despite the complexity of family law cases.
Most clients with complex or unpredictable matters will use a la carte pricing. Our prix fixe options are great for clients who need one particular task completed and appreciate the certainty of a set fee.
A la carte Pricing Model
Each a la carte client will pay an ongoing retainer fee plus flat rates for particular specialized documents and services as they are needed.
Our clients on this plan pay an ongoing retainer fee for each 3 months that their file is active. This fee covers standard ongoing maintenance and supervision of their file and includes standard communication and correspondence on their file as well as up to 3 hours of meeting time with us during each period. We have carefully tailored the included services so that most clients will have their ongoing standard needs met without exceeding these fees. We also recognize that there are times when family law files become very inactive; sometimes due to waiting for a court date or other future event. We do not charge an ongoing retainer fee during such periods of inactivity. Our clients value the predictability and certainty of fees this model offers them.
In addition to ongoing retainer fees, clients pay flat rates for each of the services required on their file beyond standard communications and correspondence. Generally the services for which additional fees are charged are document preparation, financial disclosure preparation, court appearances, and lawyer attendance at settlement or other meetings. These prices are disclosed upfront and our clients can make informed decisions before giving instructions on how to proceed. For example, our clients know exactly how much a court application is going to cost them before deciding whether to bring it.
Prix Fixe Pricing Model
We also offer special prix fixe all-inclusive packages for certain simple and common services. These include such services as uncontested divorces, simple separation agreements, and one and two day trials and family court hearings.
These packages are designed for simple straightforward matters and allow clients predictability in legal fees. There are many exclusions from these packages because they are only suitable for certain limited simple matters. Many of our packages include additional add-on services and fees for matters that are slightly more complex. If you matter does not fit into one of our packages we are pleased to offer you the value offered by our a la carte model. If you start out on a prix fixe package and your matter takes an unexpected turn we will convert your services to the a la carte model. Your fees will be what they would have been had you started with a la carte from the beginning, no hidden penalty.