CONSULTATION
One of the most stressful parts of separating is the lack of knowledge about how separation works. Clients often attend the first consultation anxious, scared and with many questions about parenting, support, their homes, pensions and businesses. The goal of the first consultation is to help you understand:
- the key issues that relate to your separation;
- the information that you’ll need to address those issues;
- the best process to reach a settlement on your file; and
- the people who will help guide you through the process.
You should leave the consultation feeling more empowered and feeling that you have a plan to handle your separation.
Contact us by phone, email or fill in this form. Someone from our team will respond, take any remaining information that is needed to clear conflicts and ensure that we can represent you. Then we’ll set a time to meet.
The more organized and knowledgeable that you are about your finances, the more we can achieve at the first consultation. To assist you, we have a questionnaire that we will ask you to complete before coming in. It’s very helpful for organizing your thoughts and information, which can help get us all off to a strong start.
If you can’t complete the entire questionnaire, we’ll get some preliminary information from you at the consultation itself. The most helpful data is information about your income over the last few years, your main assets and debts, and any information about your children’s special needs or the involvement of the police or the Children’s Aid Society in your family’s life.
Importantly: don’t let a lack of paperwork stop you from getting legal advice. If you can’t or don’t have time to organize your financial information, just tell us. We are here to help.
Yes. If a trusted friend or family member will help you process information, ask good questions and generally feel more comfortable at the consultation, bring them.
This is a common problem and there are a number of ways to solve it, depending on why the information is not available. Sometimes spouses may be purposefully hiding information. Other times, information may be lacking simply due to spouses having kept their finances separate during the relationship, or because division of labour in the relationship meant one spouse was responsible for financial matters. And finally, sometimes a spouse may be trying to hide assets to gain an advantage in the separation. At your consultation, we’ll walk through what information you have, what information you lack and develop a plan to fill in the gaps.
We encourage you to attend your first consultation in person. Some court attendances require that you be there in person too. Besides that, most meetings and some court appearances can happen by videoconference and phone. If you cannot attend the first meeting in person, alternative arrangements can be made. Just let us know.
The reasons for separation usually have little effect on the resolution of parenting, support and property issues. Divorce, for example, can be obtained on the simple basis of being separated for one year. So, few people bother with the more complicated grounds of adultery or “cruelty”. Issues like infidelity rarely play a role in determining spousal support or effecting property division. Violence, however, can have a serious impact on parenting arrangements. At your consultation, we will have some high-level questions about the reasons for separation intended to let us know whether they may affect your case. But unless they are directly relevant, we may not make you get into the details.
No. The consultation may be a one-off meeting. You are under no obligation to retain us to act as your lawyers afterwards. If you wish to retain us to represent you after the consultation, we will provide you with a retainer agreement for your review and signature. Only after a retainer agreement is signed and a retainer fee provided are we your legal representative on an ongoing basis.
COSTS AND RETAINER AGREEMENTS
Our consultation fee is a flat rate of $800 inclusive of HST. This covers the lawyer preparation for the meeting and about an hour and 15 minutes of meeting time.
The hourly rates depend on the team member that is working on your file and their experience. Law clerks can do many of the critical tasks associated with organizing your financial disclosure, scheduling court matters, preparing first drafts of documents and serving and filing important documents with the court. Law clerks may cost between $175 and $225 per hour, depending on their experience. Lawyers are responsible for such tasks as finishing clerk drafting or writing more complex documents from the beginning, dealing with other lawyers, preparing legal strategy and making arguments to the court on your behalf. Jason’s present rate is $550/hour.
A retainer agreement is a written contract entered into between a lawyer and a client that sets out the services the lawyer will provide, the way that the client and lawyer will interact, the lawyer’s fees and payment terms and other associated information.
A retainer fee is an amount of money provided to a lawyer up front, which lawyers may draw upon to pay their fees as they provide services on a file. When a retainer runs low, the lawyer may ask for it to be replenished by the client.
The amount of the retainer fee depends on the nature of a file. For example, cases where parties are going to court typically have a higher retainer fee than cases where parties have agreed on most issues and only need to work out a few specific terms of a separation agreement before drafting it. We typically tell the client what type of retainer fee we will need at the first consultation, where we get a better idea about the complexity of their case and the plan for getting to a settlement.
Any portion of the retainer fee that is not used will be returned to you at the end of your case. For example, if you paid a retainer fee of $5,000 and only $3,000 was used, you would receive your $2,000 back at the close of your file.
We require a retainer fee for most cases, because of the costs associated with the early stages of any file. For clients who may not have ready access to funds but have property assets which can secure their bill (such as property), we can consider payment plans backed by security agreements, similar to how banks take security from clients. Sometimes, a parent or other supporter may guarantee the payment of the fees, allowing us to put a payment plan in place. These arrangements are made on a case-by-case basis.
We do not take legal aid at this time.
It’s hard to estimate this beyond a very high level. Think of it on a spectrum going from the faster/lower cost to the slower/higher cost side. Where your case is on the spectrum depends on the level of conflict, communication and transparency/trust.
So, if you and your ex agree in principle on many issues, are good communicators and are both being transparent and diligent in exchanging information, your case should resolve faster and at a lower cost. If conflict is high, communication poor and transparency low, it will take longer and be more expensive. We’ve seen some cases resolve within weeks and others take years.
Good planning is key to keeping your case on the faster/low cost side of the range. If your case starts on the slower/high-cost side of the range, with some good legal strategy, it doesn’t have to stay there.
Yes, to a degree. Our courts typically operate on a “loser pays” system. In other words, the unsuccessful party at court is usually ordered to reimburse the successful party for their legal fees. But what makes a party “successful” and how much of a “reimbursement” are we talking about? The judge hearing your case has wide discretion here and considers many factors, including the parties’ efforts at settlement.
Property
A matrimonial home is a home in which a married couple was residing at the date of separation and in which one or both parties had an ownership interest. Matrimonial homes receive special treatment in several important ways under the Family Law Act. For example, regardless of who legally owns the matrimonial home, both members of the married couple have the right to “possess” it and it cannot be sold or borrowed against without mutual consent. The matrimonial home is a critical asset in a separation and it is important to consult with a lawyer about it.
Yes. For example, if you had a cottage that you used regularly at the date of separation, both it and your usual residence could be “matrimonial homes”.
No. The matrimonial home designation under the Family Law Act is only available for legally married spouses. Different principles may apply to a house owned by a non-married, “common law” couple and you should consult with a lawyer about these.
Not necessarily. If the parties both own the home and cannot agree on how to deal with it, it may have to be sold. But it is also common in separations for one party to purchase the other’s interest in a property, or to exchange their interest in a home for the other side’s interest in something of theirs, such as a pension entitlement. It is important to disclose and value assets early in the separation process so that these negotiations can be successful.
No. Married couples have a distinct set of rules for property division set out under the Family Law Act. Property division for non-married couples is governed by judge-made “common law” and can be influenced by the way they have chosen to hold property and the way they have structured their domestic life before separation. Division of property between non-married couples can be complex. Legal advice and careful planning is critical.
Pensions are property under the Family Law Act and are therefore subject to its property sharing rules for married couples. In some cases, common-law spouses may also develop a property interest in their partner’s pensions. You need to disclose and value any pension assets that you and your spouse have. However, this does not necessarily mean that you will need to divide your pension with your ex. Depending on the circumstances of your case (including the value of the pension when you began the relationship), there may be alternatives to sharing pension interests that can be explored.
Varia
No. It is never recommended that separating spouses use the same lawyer. Each spouse should have independent legal advice (“ILA”) before negotiating and signing a separation agreement.
A lawyer can act as a mediator for a separated couple and help them to reach agreement on the terms of a formal separation agreement. However, the couple should then each get ILA before the formal agreement is finalized and signed.
There are few downsides to trying mediation. Mediation is usually “closed”, meaning that what is discussed in the mediation session is confidential and cannot be referred to in any future court proceeding or arbitration. If your mediation is unsuccessful, you can therefore move on with other efforts at resolution such as continued negotiation, court or arbitration.
Still, mediation does take up time, effort and money. Picking the right moment to start it is important. You want your case to have the best chance at resolving in a mediation before you proceed with one. We’ll work with you to ensure the conditions are right to get a successful mediated outcome.
Under the Divorce Act, the three grounds for a Divorce Order are:
- Separation of one year or more;
- Adultery; or
- Cruelty (such as abuse).
It is only necessary to establish one of these grounds to obtain a divorce order. Given the length and expense of court proceedings and the frequent difficulties that arise in proving adultery or cruelty, the vast majority of separated parties choose to claim based on a one year separation. Still, if you believe the other grounds apply to your file, you should advise your lawyer. They may effect other elements of your case, even if you choose not to rely on them for the purposes of getting the divorce.
A Separation Agreement is a formal legal contract, often lengthy, that addresses some or all issues relating to a separation such as parenting of children, child and spousal support, property division and transfers, pension division, sale or transfer of ownership of the matrimonial home, estate rights, future dispute resolution and releases of any further claims.
Most commonly, the Divorce Order simply dissolves the parties’ legal marriage. This allows parties, for example, to marry again and/or claim the status of “divorced” for tax purposes. Many simple Divorce Orders are only a page long.
This said, Divorce Orders can also incorporate some of the terms of a parties’ separation agreement, giving those terms the force of a court order. We’ll review with you whether incorporation of Separation Agreement terms into your Divorce Order is appropriate for your case.
For the purposes of calculating property division and the one year that you must be separated before seeking a divorce order, “separation” is the date on which you and your spouse separated “without any prospect of reconciliation.” This can happen in a number of ways. Separation could be the date on which the spouses have “the talk” and agree that they are going to separate (even though they continue to live under the same roof for some time after that). It could also be the date on which separation happens due to one spouse having to leave the home for some reason, such as being charged criminally or being committed to a health or long-term care facility. Or it could be the date on which one spouse moves out of a shared residence.
The date of separation may affect spousal support as well, since one of the many factors in support analysis is the length of the relationship.
Given the importance of the date of separation, it’s recommended that you carefully review the circumstances of your relationship’s end with a lawyer before committing to a date.