Sigrent wrote a comment on divorce legal fees in the forums. He complains about how high legal fees are, and then offers some proposals for ensuring that your legal fees are kept down.

The issue of legal fees for divorce is a complex one, which I can’t do justice to in a brief post here.

Some things to consider:

1. Family law gets more and more complex all the time. Nowadays a lawyer has to specialize in this area to even begin to attain a degree of competency. This drives divorce legal fees higher.

2. Social norms change. For instance, a generation ago, men generally didn’t get custody. Now, in many cases, they demand to be equal parents. The additional conflicts this causes drive divorce legal fees higher.

3. The law can be very grey and the financial stakes huge. For instance, the value of a pension may vary by several hundred thousand dollars, depending on what age a person retires. This drives legal fees higher.

4. Justice can be uneven. The results you’ll get before one judge may differ greatly than what you’d get before another judge. This makes it difficult to settle cases, which drives legal fees higher.

5. There’s no end to creativity of couples as to how nasty and complicated they want to make each other’s lives. The conflict drives legal fees higher.

6. Although a lawyer may make things look easy it actually is a lot of work even if you just want to do well in negotiations. To do well in court requires even more lengthy and detailed preparation. This drives legal fees higher.

I’m rambling a bit, but basically there are a lot of good reasons why a divorce costs so much. I’m not saying that’s ideal or the way it should be, but simply observing how things are.

Regarding Sigrent’s suggestion about flat fees: Flat fees work well when you can predict the amount of work involved. In a divorce, this is generally not possible. It’s always possible to raise more issues, if you or your spouse is thus inclined. It’s always possible for one or both spouses to be unreasonable (surprise - that’s one reason why you left them). As well, until the case has developed, it may not be possible to know what all the issues are in more than the most general sense.

I find Sigrent’s advice not to be afraid to haggle somewhat troubling. It shows that price is a major factor in your decision to retain a lawyer, which it shouldn’t be in something as important as your divorce. There are good ways to keep your legal fees down, but haggling is not one of them.

I think that one of the reasons why people get bad legal representation is that they try *too hard* to save legal fees. They try to get free consultations, shop around for the lowest priced lawyer, complain to their lawyer about every bill and try to get it reduced, and so forth. Granted, it’s good to save money. But saving a few dollars in legal fees may cost you a lot in your final divorce settlement.

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David Giles responds to my comments on his analysis of the Contino decision. David states: “The point I was trying to make, and perhaps it didn’t come across clearly, is that the ‘dollars for days’ argument may be more easily rebutted.”

What I’ve seen prior to the Supreme Court decision is that in almost every case where a father requests shared custody, the mother responds by saying that he’s just doing it to reduce child support. While I think that the Supreme Court decision probably makes it harder to get that reduction, the fear of mothers about the reduction in child support will still be there, and so they will still continue to resist shared custody, and still continue to accuse the father of seeking it to reduce child support.

Another factor to consider is that child support is fairly easy to change, whereas changing an access schedule is difficult. So, a support payor who parents the children over 40% of the time can initially agree to pay the full table amount of child support, knowing that in a year or two there may be an opportunity to reduce child support, or at least not increase it as his or her income increases. On the other hand, it will be next to impossible for the support recipient to cut access down once it has been in place for a year or two.

Another thing to consider is that for relationships in which spousal support is payable, which is the case in most relationships that last a few years, the trend in the courts, now formalized in the Spousal Support Guidelines, has been to divide up the family income using certain percentages. So, even prior to the Supreme Court decision, it was pretty much the case that most savings you might get from a reduction in child support due to shared custody would be offset due to an increase in spousal support payable. So, in cases where spousal support is payable, which is very many cases, the Supreme Court decision might not make a big difference.

David also explains further his position that, “a valid argument may now be made in the determination of the proper amount of child support to be paid below the 40% threshold using the pro-rated set-off amount.” However, the language of the Child Support Guidelines is very clear: the table amount is to be used except in specifically enumerated cases.

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David Giles did a write up of the Contino decision. Overall, I think it’s a pretty good analysis. However, I disagree with him on a couple of points.

David says that the decision has “opened the door to shared parenting by removing the reduction in child support argument.” With respect, I disagee. While there’s no longer an automatic presumption of a reduction in child support in cases of shared parenting, there’s still the possibility, and people will be alert to this.

David also says “I think the SCC has opened up a new controversy by confirming that the table amounts do not take into account any child related expenses (shelter, food, clothing, etc.) incurred by the payor parent at any level of access.” This always has been clear - it’s not new. See family law lawyer Gene Colman’s analysis of the Court of Appeal decision in which he eloquently states:

“In truth, the Federal Child Support Guidelines (and by consequence, the provincial counterparts) assume, in the actual design of the numerical entries for the table amounts, that the access parent incurs absolutely no costs for the child. (This has enormous ramifications with respect to the manner in which section 9 should be interpreted.) To prove the point that the Guidelines do indeed assume that the payor parent has absolutely no costs associated with the children, one need search no further than an overlooked publication authored by the Child Support Team from the Department of Justice Canada, Formula For the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report (CSR- 1997-1E) (Child Support Team, December 1997):[20] Indeed, the philosophical and theoretical underpinning of the entire standard table amount is premised upon the fact that the payor parent incurs absolutely no child-centred costs.”

In any event, it will be very interesting to see how trial and motions judges deal with this decision. In a sense for shared custody cases, we’re back to the pre-Guidelines calculation of child support, with all the benefits and problems that this situation means.

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In cases of shared custody, in other words, cases where both parents have custody and the children spend approximately the same amount of time with each parent, the amount of child support is discretionary. How judges should exercise this discretion has resulted in a large amount of litigation.

The most important case dealing with this issue is Contino. I reviewed the Ontario Court of Appeal decision here.

Well, yesterday the Supreme Court of Canada released its decision of the appeal from the Supreme Court. You can find the decision here.

I’ll comment on this in more detail in the near future. But, it’s interesting to note that this is the *4th* court that’s heard this case, and all 4 courts came to different decisions. The motions judge decided that child support should be $100 per month. The Divisional Court decided that child support should be $688 per month. The Court of Appeal decided that child support should be $399.61 per month. And the Supreme Court of Canada decided that child support should be $500 per month.

While the Supreme Court ultimately sets the rules, it’s interesting to note that so many intelligent judges reviewed the exact same situation in great detail yet came to such different conclusions. You roll the dice when you go to court…

What do you think of this decision? How should child support be dealt with in situations of shared custody?

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There are a lot of issues in international divorce. Today, I’ll focus on the issue of when a court in Ontario will take jurisdiction of a family law case with an international element. I’ll also start by limiting things to when a couple initially separates; once there are court orders, either from Ontario or another jurisdiction, then things get a bit more complicated.

Basically, there is a three-step analysis in this situation. First, is there statutory authority under which the Ontario court has jurisdiction for the international divorce case? Second, if there is such authority, should the court decline to exercise its jurisdiction in favour of another court? Third, if Ontario does exercise jurisdiction, should it apply Ontario law or foreign law?.

Today I’ll deal with the first step of this analysis.

Divorce

The first issue in any divorce case is the divorce itself. For a court in Ontario (or anywhere in Canada) to have jurisdiction over the divorce itself, at least one spouse must have been “ordinarily resident” in the province for at least one year immediately preceding the commencement of the proceeding.

“Ordinary residence” is not a defined term in the Divorce Act, but there have been a lot of cases dealing with it. It’s basically the real home of the person. Even if the person is temporarily posted abroad, they may still be ordinarily resident if there is an intention to return to Ontario and a serious and permanent attachment to Ontario.

If divorce proceedings are started in two different provinces within Canada on different days, the court in which the first proceeding was started has jurisdiction. If divorce proceedings are started in two different provinces on the same day, then the Federal Court has jurisdiction. However, if divorce proceedings are started in Canada and another country, then this consideration doesn’t apply.

Child Custody and Access

A court with jurisdiction over your divorce may grant you a child custody or access order under the Divorce Act.

You can still proceed under the Children’s Law Reform Act even if there is no jurisdiction under the Divorce Act. The test looks fairly complicated but in simple terms if the child normally lives in Ontario or is properly in Ontario when the case begins, then Ontario has jurisdiction. The test in full is:

The court has jurisdiction under the Children’s Law Reform Act where (a) the child is habitually resident in Ontario at the commencement of the application for the order; or (b) although the child is not habitually resident in Ontario, the court is satisfied, (i) that the child is physically present in Ontario at the commencement of the application, (ii) that substantial evidence concerning the best interests of the child is available in Ontario, (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario, (v) that the child has a real and substantial connection with Ontario, and (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

“Habitual” residence is the place where the child resided: (a) with both parents; (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or (c) with a person other than a parent on a permanent basis for a significant period of time; whichever last occurred. The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing proceedings.

Whew! That test is quite the mouthful. However, in short, it boils down to: is your child properly living in Ontario - if so, then Ontario has jurisdiction over child custody and access.

Note that if your relationship is a common law one, the Divorce Act doesn’t apply, and there will need to be jurisdiction under the Children’s Law Reform Act.

Child Support and Spousal Support

Again, as with child custody and access, if a court has jurisdiction over your divorce, it can also make orders as to child support and spousal support (alimony) under the Divorce Act.

However, as with child custody and access, even if the court doesn’t have jurisdiction to grant a divorce, the court may still have jurisdiction over support claims - this time under the Family Law Act. All the Family Law Act requires for jurisdiction is the residence of either party in Ontario - you don’t even need to have lived in Ontario for any particular length of time. So, if someone separates and then moves to Ontario, they can apply for child support or spousal support in Ontario.

Property Division

Division of property in Canada is regulated at the provincial level. In other words, the Divorce Act doesn’t deal with it at all. In Ontario, you need to look at the Family Law Act.

The Family Law Act does not have any special jurisdictional rules for property division. In other words, all that’s necessary is that the court has personal jurisdiction over the respondent, just as with any other type of legal claim.

The Family Law Act doesn’t deal with property division for unmarried couples. These cases use common law concepts of unjust enrichment. There are no special jurisdiction rules for claims for unjust enrichment. So, if the Ontario court has personal jurisdiction over the respondent, then the Ontario court has jurisdiction over an unjust enrichment claim.

Conclusion

This is a brief outline of the first step of analysis in an international divorce case. It’s important to remember that this is just the first step. Just because the Ontario court has jurisdiction over a case doesn’t mean that the Ontario court will exercise its jurisdiction. In the near future, I’ll talk about when the Ontario courts will and won’t exercise their jurisdiction.

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Welcome to my new divorce blog. I hope to make this a valuable addition to my website, providing you with divorce information, help and support. Please feel free to comment, as I’m always happy to hear from you.

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