In my last post, I discussed 8 roadblocks to settling your divorce. They are not easy to overcome, yet they are the reason that many divorce cases become so difficult to resolve.

My preferred method for dealing with a lot of these roadblocks is to get a neutral experienced third party involved who can deal with the roadblock. In an amicable case, this can be a mediator, preferably one with great credentials. Otherwise, this person normally is a judge. Although I like to try to keep cases out of court if possible, if there is a serious roadblock to settling your case, you’ll need to go to court, so for today I’ll just assume your case is a litigated one and the neutral third party is a judge.

One feature of the family court system in Ontario, which I support strongly, is early judicial intervention in a non-adversarial setting – the case conference. Handled appropriately, the case conference can remove a lot of the obstacles I discussed and allow the parties or their lawyers to work towards a resolution of their case.

Here’s how a judge can help, particularly at a case or settlement conference:

1. The other divorce lawyer. In my last post I discussed how an inexperienced lawyer may not be reasonable simply because they don’t know what a local judge will decide. However, a judge at a case or settlement conference can give an opinion as to what the judge would decide at trial. I also discussed how an overly aggressive lawyer can be a roadblock. Family law judges really encourage reasonableness and aggressiveness often backfires in court. As well, an early victory at a motion can help in the case of an overly aggressive lawyer.

2. Unreasonable clients. Although many clients don’t listen to their lawyers, generally clients listen to judges. An early case conference can allow a judge to give an opinion as to the strengths and weaknesses of each spouse’s case. If someone hears something from both their lawyer and a judge, normally they will (begrudgingly) go along with it.

3. Child custody disputes. Getting the Children’s Lawyer or a child custody assessor involved can really help, both in terms of resolving the case, and in helping each party to see their strengths and weaknesses as a parent.

4. Delay. Getting the matter in front of a judge as early as possible and getting orders as to a time line will help with this.

5. Revenge. A judge can show a vindictive spouse the financial consequences and the consequences on the children of pursuing a path of revenge.

6. Legally aided spouse. An ongoing problem with legally aided spouses is that you negotiate an agreement and then at the last moment, the agreement is not signed. Having the negotiations occur in a formal setting in front of a judge can result in a court order instead. Also, moving these sorts of cases through the legal system as quickly as possible seems to work well in minimizing wasted legal fees.

7. Spouse not working. Your time in front of a judge is going to be limited – you’re lucky to get an entire hour. So, the judge will just want to deal with the big issues and if the spouse who is not working has come up with a lot of trivial issues that do not need to be resolved, the judge will normally be blunt and point that out.

8. Interference from family. At a case conference or settlement conference, you can ask the judge to exclude everyone from the court room other than the parties and their lawyers. This will allow you to get the interfering family member or friend out of the decision making process.

Obviously, my suggestion is not a magic bullet – if such a thing existed, all divorce cases would be completed in weeks rather than in months. However, judicial intervention in a non-adversarial setting through conferences can make a difference in a lot of cases.

Many times in my practice, once I am familiar with all the facts of a case (including both my client’s version and the version of my client’s spouse) I can predict a range of outcomes that’s normally very accurate. Despite this, it can be difficult to settle a divorce case, raising legal fees tremendously and causing both parties a lot of stress. Here are 8 of the reasons why this happens.

1. The other divorce lawyer. I do agree with the common perception that lawyers can make things more difficult than need be. The reasons for this are somewhat complex. Some lawyers are overly aggressive. This isn’t solely the lawyer’s fault – clients going through a divorce often want their lawyer to be aggressive. Aggression isn’t the only problem – an inexperienced lawyer may not be reasonable simply because they don’t know what a local judge may decide.

2. Unreasonable clients. One thing about being a divorce lawyer is that even though you’ve dealt with a situation many times before, a client knows more about it because a friend of a friend said something. Whether you like what the law has to say or not, for most middle-class couples in fairly average situations, the law is pretty clear. But it can be difficult to resolve a case if one spouse doesn’t agree with what the law is. (As a side note, I agree that in a lot of cases, the result isn’t fair, but that’s a political, not a legal, issue).

3. Child Custody Disputes. In most cases, you can say it’s just money, and move on. With the children, you can’t do this. Custody disputes are one of the most difficult types of case to settle.

4. Delay. It’s usually in one spouse’s interest (normally the payor) to delay settlement, even if it is just a matter of postponing the inevitable, while it’s best for the other spouse (normally the recipient) to resolve things as quickly as possible. Add in delays because each spouse’s lawyer is busy at a different time and it’s no surprise that divorce cases aren’t resolved quickly.

5. Revenge. Often the divorce process is used as a way of getting revenge on a spouse. Yes, you really can make you’re spouse’s life miserable through the divorce process if you wish to. And despite the high financial cost of doing this, many people choose to go this route. This is particularly the case where one spouse has had an affair.

6. Legally Aided Spouse. Normally, high legal fees are an incentive to settle a divorce case quickly. Every dollar in legal fees is a dollar that is taken away from the children and from both spouses. However, where one spouse is legally aided and the other one isn’t, one spouse bears all the financial consequences of a divorce battle while the other’s finances aren’t affected.

7. Spouse Not Working. Where one spouse isn’t working – say they’re a homemaker or disabled – I’ve found that cases are much more difficult to resolve. The non-working spouse seems to spend an inordinate amount of time thinking about the divorce case, and coming up with ways to make it complicated.

8. Interference from family. I’ve had a number of cases where I think that the two spouses could actually work things out amicably – maybe even without the help of divorce lawyers. But there is a meddlesome family member who just won’t let this happen, and who seems to have a large influence in one spouse’s life. I find that this is particularly the case for younger couples, who probably still have a closer attachment to their parents than do older couples. It is also particularly prevalent in couples of Far Eastern origin where family has quite a different role and meaning in their lives than for people who are born and raised in Canada.

In a future post, I’ll discuss some of my thoughts on how to resolve these roadblocks.

Please let me know what some of the roadblocks are that you’ve encountered in trying to settle your divorce.

In Ontario, what was previously known as an examination for discovery is now called questioning. I’ve previously discussed what questioning is.

There was an extensive discussion in our forum about how stressful questioning is.

Here are 8 tips about how to succeed at your questioning:

1. Give Precise Answers. If you’re asked how much you earned last year, give a dollar figure. Don’t explain why it was higher or lower than usual, or that it included a bonus. If someone is holding a pen and you’re asked “Do you know what this is?” the correct answer is “yes” not “a pen.”

2. Tell the Truth. Don’t try to outsmart your spouse’s lawyer. Not that your spouse’s lawyer is smarter than you, but they’ve been through this a lot more than you have.

3. Prepare in Advance. Ideally you’d review every document that has been produced in your case. At a minimum, you should be familiar with your financial statement and all the pleadings. Take the time to have your lawyer do a mock questioning of you.

4. Anything You Say Can and Will Be Used Against You. Remember that your questioning can only be used by your spouse’s lawyer to help your spouse’s case. Your lawyer can’t use your questioning to help you. So, don’t worry about trying to argue your case. Just answer the questions you’re asked.

5. “I Don’t Remember” is a Dangerous Answer. Think long and hard before you answer a question with “I don’t remember” (or even “I don’t know”). The problem is that you can be sure your spouse will have a vivid memory of everything you forget. Even if what your spouse says is completely made up, you’ll have a hard time convincing a judge otherwise, because you’ve already sworn that you don’t remember.

6. You’re Not Stupid. Often a lawyer will use unfamiliar terms, sometimes purposefully to confuse you, but oftentimes simply out of habit. If you don’t understand what you’ve been asked, get it clarified. No one will think less of you if you do this, and you may be saving yourself from answering the wrong question.

7. Your Lawyer Can Only Help So Much. Your lawyer’s role is mainly to ensure that you’re not asked inappropriate questions. So, there may be large periods of time when all your lawyer seems to do is sit there and listen.

8. Don’t Answer Until the Question is Asked. In normal speech, we often start talking once we know what the other person is going to say. At questioning this is a problem, as a reporter will need to write down what two people are saying at once. It’s a good idea to speak loudly and clearly as well so that the reporter correctly records what you say.

Will you still be stressed even if you do all the above? Yes, and you probably won’t sleep well the night before, and after your questioning you’ll probably think of all sorts of better answers you could have given. That’s normal and happens to everyone. But if you keep these tips in mind, your questioning will go a lot more smoothly.

One area of family law in which there tends to be a lot of misunderstanding is the effect of new partners on a person’s child support and spousal support oblgations. That is, if you start living with someone else, will that affect how much child or spousal support you must pay? Today, I’ll just deal with one small part of that, namely what sort of disclosure must you give about your new partner’s income?

Cynically, I suppose the answer is nothing. You can just claim that you don’t know what your new partner’s financial situation is. In that case however, you’re risking two things.

First, if your new partner’s financial situation remains undisclosed, then a judge is likely to make a negative inference about this. For instance, if you are claiming undue hardship, the judge may assume that there is no undue hardship because of your new partner’s income.

Second, you risk dragging your new partner into the legal proceedings. Your ex may be more than happy to serve motion materials on your new partner asking for this financial disclosure directly.

So what should you disclose? It really depends on what your case is about. But at a bare minimum, you’ll normally be required to produce information about your new partner’s place of employment, earnings and contribution to household expenses. This is what is required by the family law rules in cases where support is in issue.

As support for these figures, your new partner may be required to produce complete income tax returns and notices of assessment for the last 3 years.

There have been a few cases where more detailed financial disclosure has been required of new partners, and even cases where a new partner has been cross-examined under oath regarding their financial situation. However, these are generally more complex cases and you’ll need to consult with a lawyer about further financial disclosure.

The general rule in family law is that almost anything that’s relevant needs to be disclosed – and judges tend to interpret disclosure requirements quite broadly. Of course if your ex is just on a fishing expedition, you’ll want to defend against that vigorously.

In family law cases, decisions depend greatly upon the quality of the information and evidence before the court. Often the law is simple – for instance, for anything relating to children, the test is what is in their best interests. Or, the law is vague – for instance, for spousal support the court considers:

• your assets and your spouse’s assets
• your income and your spouse’s income
• your age and your spouse’s age
• your health and your spouse’s health
• the standard of living when you lived with your spouse
• the ability of your spouse to become self-sufficient
• the contribution your spouse has made to your career
• the economic hardship suffered by your spouse arising from the marriage

If that’s not vague, try and figure out how much spousal support you need to pay based on that!

Therefore, I was greatly surprised to find the Wikipedia is being used in the United States (and in Germany in one case) as a reliable source of information. This is despite the fact that Wikipedia is edited by volunteers, and you can pretty much put anything into it that you want.

For instance, recently someone planted an untrue story in the Wikipedia that someone involved in the Kennedy assassinations of both John and Bob. The person was anonymous and untraceable, of course.

While the Wikipedia is a great place to quickly obtain background information on a subject, it should hardly be relied upon as authoritative in a court of law, especially given that entries can be made by virtually anonymously, so that there’s no way of judging credibility.

Out of curiousity, I checked whether Canadian courts had relied on the Wikipedia. I found 4 such instances:

The R. v. Y.N., a criminal law case involving various property and weapons offences. In that case, the judge was examining the meaning of the phrase “reasonable explanation.” The judge referred to the “Google Dictionary” [I don't think such a thing exists...], to the Wikipedia and to Webster’s New Collegiate Dictionary in helping to define the term. Given that the judge is cross-checking several sources, relying on the Wikipedia is hardly damaging in this case, but one has to wonder why the judge would choose to rely on the Wikipedia over, say, the Oxford English Dictionary.

The second case is Gillet c. Arthur. The case is in French, so my analysis has to be somewhat limited. At issue seems to be the definition of the word “shock jock” in a policy of insurance for a radio station, which did not apply to claims arising out of the services of a “shock jock.” The judge looked up the definition of “shock jock” in the Merriam-Webster Collegiate Dictionary as well as the Wikipedia. Given the modernness of the term, the use of the Wikipedia may well be merited, given that the judge did cross-check the reference with a reputable dictionary.

The third case is Almrei v. Canada (Minister of Citizenship and Immigration), an immigration case. In this case, it appears that a Delegate of the Minister of Citizenship and Immigration had before her in evidence an article from the Wikipedia on “Maher Arar.” It’s unclear what weight was put on this article, or even how it was used, but the Delegate had scores of other articles as well, including reports from professors, major newspapers and various government departments. So, hopefully the article was considered in light of all the other documentation before the Delegate, which seems to me to be the proper use of such information.

The final case is Bajraktaraj v. Canada (Minister of Citizenship and Immigration), another immigration case. In this case, the applicant present to the court an article from the Wikipedia in support of his case. The court said that the Wikipedia article’s quality “did not impress” and stated that it “provided no references for its content.” Bingo. That’s exactly right.

In short, I’m glad to say that the Wikipedia has so far had little impact on Canadian jurisprudence. Justice Mosley’s comments in [i]Bajraktaraj[/i] are exactly right and exactly how evidence from the Wikipedia should be treated in the courts.