Archive for the ‘ representing yourself ’ Category

Unbundled!

 

What’s the deal with unbundled legal services?

 

Unbundled.

 

It’s not just a term used to describe cable tv and phone services. Nowadays it’s also a term used to describe the delivery of legal services, especially in my own area of legal expertise, family law.

 

Let me explain.

 

Traditionally family law lawyers retained by a party in a family law dispute assumed responsibility for everything until the matter was settled, either by agreement or court order.

 

This included responsibility for filing or defending legal proceedings, (called “being on the record”), sending and receiving documents and correspondence, to and from, other counsel, attending all court appearances etc.

 

Retaining counsel also meant being asked to provide a monetary retainer. An inconvenient, and not so insignificant lump sum, with no guarantee usually given that the retainer will be sufficient to settle matters, and often not.

 

And as the cost of legal services has continued to escalate, this traditional model of providing family law services has become simply unaffordable for any, but the wealthiest.

 

Which is the reason that many parties have no alternative but to represent themselves, sometimes referred to as self- represented litigants (SRL’s). But even SRL’s still need access to effective, and affordable legal advice and assistance to navigate an intimidating, and complex, family law system.

 

And also the reason and motivation to provide individuals with the option of using a different, “unbundled” model, to access my family law services. What I refer to as the “pay as you go model”, which can offer significant advantages.

 

These include not having to provide an up-front lump sum retainer since you will be representing yourself, and taking direct control of matters. You simply rent my time and support, as, and when, needed.

 

My range of services could include, helping you to understand your legal rights and obligations, answering questions, assisting you to commence, appear, or respond, to legal proceedings filed by your spouse or counsel, drafting documents, correspondence etc.

 

And as I always mention to anyone who chooses this option, the more effort, commitment, and work you assume, the less you’ll pay for my services. With the added bonus, if you don’t like what I do for you, you can terminate my services easily by not renting any more time!

 

Also, since I am not retained as your counsel any and all documents and correspondence will need to be sent to you rather than me, another legal expense you can avoid.

 

In addition, since you are representing yourself you have the right to deal directly with your spouse’s counsel, whose services are being subsidized by your spouse.

 

There’s also another potential indirect advantage to effectively representing yourself, if your spouse has retained counsel. Since your spouse, no doubt, dislikes the fact they are paying heftier lawyer bills than you, this fact alone can often encourage a sudden, and much more reasonable settlement strategy, on the part of your spouse and counsel.

 

So if you happen to be involved in a family law matter, and you’re concerned about legal costs, (and who isn’t), check out lawyers like myself who provide unbundled family law services.

 

Finally, just think how impressed your ex will be to know you’re taking control, while paying less!

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Post Traumatic Court Disorder

 

 

What is PTCD and what’s the cure?

 

No, you won’t find this particular disorder in the official manual of standard psychiatric disorders. But that doesn’t come as much comfort to thousands of traumatized Canadians, forced to handle their own family law matters. One such self represented litigant coined the phrase to describe her own experience with the family law system.

 

A recent report authored by Law Professor Julia MacFarlane also documented the widespread dissatisfaction of many others in BC, Alberta and Ontario, including middle class, University educated litigants, who felt isolated, overwhelmed, and abandoned by the system.

 

So if this condition affects you, or someone you know, what’s my prescription for a cure?

 

As a family lawyer myself I have made an effort to support those who represent themselves, whether out of financial necessity or otherwise, and there are certain steps you can take to help yourself.

 

Firstly, PREPARE. Take the time to access available on-line resources to familiarize yourself with the basic legal issues.

 

But also be sure to access sites from the same jurisdiction, for example, if your family matter is in BC, don’t bother accessing on-line resources in Ontario, or complete a precedent on-line agreement from a different province. That’s because each province has different laws and terminology.

 

Secondly, CONSULT. Just because you now have a general knowledge of the law, trust me there will be serious legal gaps.

 

Now’s the opportunity to invest in spending some time to talk with an experienced family law professional, especially before you prepare your own application, or respond to one. If you don’t, and mistakes are made in the paperwork ,your case may be doomed before you start.

 

Also keep in mind that some family law lawyers, such as myself, will

provide legal advice on a when, and as-needed basis, which eliminates the need  and cost of retaining a full-time lawyer. Technically, you are representing yourself, but you still have access to legal support when needed.

 

Thirdly, VISIT. Most self reps are intimidated, and totally stressed, at the prospect of going into court. This feeling is purely natural, but treatable. If you can, prior to any court date, take the time to visit the courthouse and observe some family trials or applications, which should help to put you at ease. You also don’t need the added stress of getting lost on your way to the courthouse on your first court date!

 

Finally, HEAL, My last prescription has nothing to do with legal advice, but at the same time will have a profoundly significant impact on both your case and the rest of your life. Being healthy, confident, and emotionally secure radically enhances the prospect that the legal choices you make are the right ones.

 

If you are an employee, check to see whether your company has an employee assistance program which provides free or reduced cost access to personal counselling. If not, look for other personal or group counselling resources, such as my kitchentabledivorce.ca counselling group.

 

Lastly, unlike most prescriptions, mine comes with no adverse side effects!

 

 

 

 

 

 

 

 

 

 

I Got Mediation!

 

Answer to your prayers? If you know the right questions!

 

Family law mediation can be the answer to help some separated parties settle their disagreements.

 

But in my experience as both a family law lawyer and mediator there remains a considerable amount of confusion and misinformation about the process of mediation, and the roles of mediators.

 

Probably once a week I will meet with a separated spouse for a consultation and be told that “my ex and I want to meet with a mediator and have them write up a separation agreement to avoid legal fees”.

 

So just what’s wrong with this approach anyways?

 

Firstly, while some mediators can be family law lawyers (such as me) a mediator need not have any legal background or experience. But regardless the role of a family mediator is not to provide legal advice, or to ensure that your legal rights are being protected, but rather to help resolve disagreements.

 

Some mediators will try and mitigate the lack of prior legal advice by preparing a separation agreement and advising the parties to obtain independent legal advice before executing it. Other mediators will simply prepare a memorandum of agreement and advise the parties to have the separation agreement prepared by legal counsel.

 

In my opinion it is far better to ensure you know your legal rights before attending mediation. If you do there is a far greater chance that any mediated settlement will be in your best interests, (and also no need to advise your aggravated ex that the mediated settlement needs to be re-negotiated because you weren’t aware of your legal rights!)

 

Secondly, before considering mediation you and your spouse should try and discuss what matters may be outstanding in the first place! If there is general agreement regarding the parenting of any children and the division of assets and liabilities there may be no need to retain the services of a mediator.

 

To find out what if any disagreements there may be, I recommend, if possible, that you and your ex first sit down at the kitchen table and review the various issues which need to be resolved. To assist my clients with this process I provide my client with a checklist which can reviewed by the parties, and then used as an outline for the preparation of a separation agreement, (or at the very least identify outstanding issues).

 

Thirdly, once you know your legal rights, and you and your spouse have defined the matters which need to be resolved, is the right time to consider retaining an experienced family law mediator.

 

So if you follow my advice, and ask the right questions, mediation may just be the answer to your prayers!

 

 

 

 

 

 

 

 

 

You’ve Just Been Served – Now What?

Just been served with court documents by a burly stranger on behalf of your former spouse? Now what?

Follow these three simple, but crucial, steps, and discover what you, and your ex, still have in common.

Firstly, take a deep breath and some time to read the documents. But resist the temptation to respond by angrily calling or texting your ex to express your shock and outrage. There are several reasons for this, namely your ex may have no idea what the document actually says, and further the wording will typically be formal legal terminology dictated by your ex’s lawyer rather than your ex.

Secondly, ignore the natural urge to rip up the documents, or file them away, in the hope that if you destroy it, or ignore it, it will go away. It won’t.

Worse yet, in your absence a court can, and will, make orders. Orders which can be far harsher than they would have been if you had prepared a proper response, and also challenging and costly to overturn.

Next, with documents in hand, arrange a legal consultation with a family law professional – Scott Taylor – #102 – 19610 64 Avenue, Langley, 604-534-6361.  Expect to pay anywhere from 30 minutes to an hour or more of legal advice.

Don’t expect a comprehensive review from a harried family duty counsel, or take legal advice from your dentist, or a friend of a friend, whose only family law experience is being divorced multiple times!

Thirdly, following the consultation you will need to prepare , or have prepared ,your  formal written response, possibly also including a claim of your own. If you decide to prepare your own documents, at the very least, have them reviewed by a family law professional before they are filed, to ensure your legal rights are protected.

However, if you follow these three steps there is also another, potentially far more valuable, benefit to you.

By responding in an effective professional manner, both your ex, and their counsel (if any), will know you are taking matters seriously, and intend to take all necessary legal proceedings to vigorously protect and pursue your legal rights.

Consequently, you have just laid the groundwork to encourage a negotiated or mediated family law settlement. That’s because your ex is no more interested in costly, protracted legal proceedings, than you are.

You do have something in common after all, trust me.

It’s called common sense.

Better late than never!

Just Watch Me – Sleep Soundly!

What to do next after you reach agreement with your ex.

If you value your sleep read on!

After lengthy discussion, much frustration, and considerable emotional turmoil, you and your ex have apparently reached agreement on the terms of your separation.

What now?

The best place to start is what not to do next.

This usually involves one of the two parties purchasing a Separation Agreement precedent either on-line or from a retail outlet and simply filling in the blanks. Both parties then sign the Agreement, and have it witnessed, usually by a friend or neighbour.

So what’s wrong with that?

Plenty, and here’s why.

Firstly, in all the many years that I have reviewed such agreements for my family law clients I have yet to see, even one, which was properly completed.

This means that important issues may not actually have been finally resolved or even properly settled, leading to potential (completely unanticipated) future problems.

To illustrate, I recently met with someone and reviewed their agreement. Not only was the critical issue of the waiver of spousal support left unclear, but the parties had also miscalculated the payment of child support.

Secondly, I have also yet to see one agreement which dealt comprehensively with all of the key issues, such as the possibility of the re-location of the child’s residence, or the sharing of certain child related expenses.

Lastly, because these agreements are signed and witnessed without the benefit of independent legal advice there always remains the possibility that a spouse could seek to have the entire agreement set aside on the basis that they did not properly understand their legal interests.

So much for having an agreement which you believed was final!

Which leads me to tell you what I believe is your next best step once you and your ex have reached agreement.

Make an appointment with an experienced family lawyer such as me and give them the details of your “agreement”. (Readers of this blog know it’s an even better idea to meet with counsel before you and your ex discuss and “finalize” the terms to avoid (both likely and damaging) misunderstandings.

The lawyer will be able to advise you (before you sign) if any key issues have been either omitted or misunderstood, and steer you in the right direction.

You can also ask the lawyer to prepare a draft agreement for you to review with your spouse, or at the very least have any draft agreement which you receive from your spouse reviewed before you sign. This is the very best way to avoid future complications.

After all, considering everything you’ve already been through, you deserve a good night’s sleep!

 

 

 

Judge School

 

Three things judges learn at judge school – and how it can help you!

No, I don’t really know if new (or even old) judges are required to attend judge school to learn how to arrive at, or present, their judgements. After all I’m only a mere family law lawyer.

But, over the past twenty years or so being on the receiving end of numerous family law decisions, I believe I’ve detected a trend, which I’m prepared to share with you. So, if you expect to be in family court anytime soon, here are what I consider to be the three fundamental lessons practised by most, if not all, family law judges.

Firstly, if you represent yourself, it’s not all doom and gloom, even if your spouse is represented by counsel. That’s because most judges will do their best to ensure that self-represented litigants (the fancy term used to describe such parties) are not taken advantage of during court proceedings. In fact, in my experience judges will often “cut the self represented person more slack” than they would counsel, especially in procedural matters.

But it’s not a “free ride” for unprepared unrepresented parties, so never expect the judge to do the case work for you!

Secondly, as I recently told a client, “it’s considered a normal (and successful) result, if after the judgment is made, both parties feel like they’ve been screwed”. In other words both sides of every family law case have their strong, and not so strong points, a fact readily appreciated by judges, but rarely by the parties themselves. Consequently, neither side typically obtains all the relief sought. So, unless you are prepared to adjust your expectations stay away from family law court.

Lastly, and I find this is the most intriguing lesson learned and practised by family law judges, is not what is said in the judgement, but when it’s said!

Let me explain. Whether a judge gives their judgment in writing or at the end of the court proceeding, in my experience, it always follows a simple predictable pattern.

Whichever party receives the most positive assessment from the judge at the beginning, will eventually be disappointed by the end of the judgement! Of course the reverse is also true, if you begin to feel depressed at the beginning of the judgement you will ultimately be pleased at the result. I can’t figure it out either.

So, the next time you appear in family court let me know if any of this sounds familiar!

 

When talking with your ex is not a good idea!

When I first meet with my family law clients going through separation, or at the very least thinking about it, there are three important things I encourage them NOT to say to their ex.

Here they are, and why, (along with my suggestions what to say instead).

First up – “I don’t ever want to go to court.”

Look, I realize that going to court can be a costly, soul destroying, exercise. I also realize that it’s totally reasonable to want to minimize the emotional trauma associated with a protracted family court proceeding.

But when you make this honest statement to your ex – this is what they think. “This is great. I can make virtually any lo-ball offer to settle that I want, and because my ex doesn’t want to go to court, it’ll likely be accepted.”

What you should say, (even if every fibre of your being feels otherwise), “I will take whatever steps I need to take to ensure that we arrive at a fair settlement.” Now they hear you mean business, and will negotiate accordingly!

Secondly, (and I’ve blogged about this before), do NOT say at this early stage, “I will pay you X dollars for this or that.”

Why? Because there is a very good chance that the number you mention is a BAD number because it does not take into consideration some other extremely important facts, such as the actual market value of the home (if there is one), or the sharing of other family debts, etc. (In fact in over twenty years I have NEVER heard the right ( ie fair) number!)

Once you find out, after getting some good legal advice, that the number you offered is far too high, and attempt to re-negotiate the number, your ex will invariably consider that you are now, clearly, trying to cheat them!

After this deemed insult, the prospect of a successful negotiated settlement dims mightily.

So instead, say something like, “Before I can give you any number I need to obtain some legal advice, to find out what’s fair.” How can anyone argue with that?

Lastly, never say, (and I know you wouldn’t), “Let’s just work everything out between us without using any lawyers,” sort of like saying “let’s just operate on ourselves without doctors.”

Why is this a BAD idea? Because your ex will think, “Great, he/she will never know that I’m getting some legal advice to protect my own legal interests, and I’ll be able to take advantage of this situation.”

Trust me when I say that you will be at a serious disadvantage if you attempt to settle all matters without effective legal advice (whether or not your ex obtains their own legal advice.)

Remember as well, that getting legal advice does not necessarily mean retaining a lawyer. There are lawyers, such as myself, who will provide legal advice and assistance on a pay as you go basis. In effect when you need it, you can get it.

What you should say, “ It’s a good idea for both of us to make sure anything we agree is fair to the both of us, and that we both get independent legal advice, before we sign anything.” Now they’ll know you’re not only good looking, but incredibly intelligent!!

Interestingly enough just like yours truly!

 

 

Absolutely everything – If you do it right!

I’ve seen it all when it comes to do-it-yourself Separation Agreements. And that is definitely not a good thing. Everything from wrongly crossed out paragraphs, crucial missing provisions, to the use of foreign legal terms downloaded from some other jurisdiction. It all makes me shudder.

Nonetheless, when I was recently asked by someone, whether her and her ex should simply prepare their own Separation Agreement, I was temporarily at a loss for words.

So I think it’s about time I came clean on the subject, once and for all.

The most common do-it- yourself Agreements in my experience are pre-printed forms, or on-line precedents, which the person is expected to correctly complete. This sounds good in theory.

That is, if you and your ex perfectly fit the standard profile. Sort of like Barbie and Ken.

But that’s never going to happen. Because despite what may appear to be numerous similarities, just like you and your ex are unique individuals, so is your family law situation.

Using a cookie cutter, one form fits all approach, risks overlooking some essential elements, which need to be addressed and settled. If not, they are virtually guaranteed to re-appear at a later date, causing big headaches.

Here’s just one such example. Parties select “reasonable and generous access” as a term of the Agreement. After all, it seems fair at the time to both parents. What could go wrong?

Unfortunately, since both parties must agree as to what is “reasonable and generous”, it can, (and does) become fertile ground for disagreement, and future litigation.

I won’t even bother commenting on the fact that the vendors of such forms and precedents also take for granted that they’ll be properly filled in, suffice to say this is an unrealistic expectation. After all, it’s not that uncommon for even family lawyers to make mistakes when preparing Agreements. At least your lawyer has professional insurance coverage if they screw up.

So then what’s the problem with preparing the draft Separation Agreement yourself, and then having an experienced family lawyer, such as me, review it?

Nothing at all and that’s an excellent idea, since I always encourage my clients to take a hands-on, kitchentabledivorce.ca approach.

However, in my own experience, by the time I’ve reviewed, and corrected the proposed draft agreement, interviewed you to assess your situation, and specific concerns, and informed you of your legal rights and obligations, and recommended much needed changes, you’ll be much further ahead by talking to me first, before preparing anything!

Unless of course you’re Barbie, (or Ken)!

Happy New You – Part 2!

Resolution #2 – Take Care of Business!

While you’re following my advice to care of your emotional needs arising from your separation or divorce (see Resolution #1) you also need to take care of some very important business.

In your case this means not only finding about your legal interests and obligations, but establishing some reasonable ground rules, until more formal arrangements can either be negotiated, or litigated.

At this very early stage, I find there are typically two reactions or approaches, neither of which I endorse for the reasons mentioned. One I call the scorched earth approach, and the other I call the mother Teresa approach.

Under the scorched earth approach one, or both, of the aggrieved parties will engage in a variety of “payback” behaviours. This could include everything from denying access, to stopping mortgage payments. While such action may offer you an immediate feeling of smug satisfaction, you can be certain this feeling will be fleeting, and soon replaced by your frustration that matters are taking much longer to resolve than you figured, and costing much more in legal fees.

I have a great deal of respect for the late Mother Teresa and all of her good works to help the world’s suffering masses. However, her unconditional acts of generosity and kindness should not necessarily be followed in your family matter, at least until you know what you are doing!

 In my practice I repeatedly hear of one or the other spouse, whether motivated by shame, guilt, or ignorance, offering the sky, the moon, and the stars, to their spouse before knowing anything about their own legal rights and obligations.

Once this happens it is extremely difficult to negotiate a settlement which differs from your original (misguided) generosity.

So what do I recommend?

Before talking turkey with your spouse be certain you know your legal interests. Furthermore, until a settlement can, hopefully, be negotiated, simply continue to maintain the status quo, whether financial. or related to the kids.

If you keep these resolutions, I forecast, you will vastly improve your legal, financial, and emotional prospects for 2011, and for many years thereafter!

 

Avoid becoming road-kill in your family law dispute!

I have another secret , (read on to discover).There are few family law disputes which evoke the levels of utter contempt and hostility seen in your typical custody/access dispute.

For one example just check out the following remarks from one extremely frustrated Ontario family court judge commenting on the parties before him  in a recent, bitterly contested, custody/access case. While hardly typical the behaviour is familiar.

          “This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody and access dispute, where the parties require therapeutic intervention rather than legal attention.”

Or,

          “While Larry’s conduct has largely reflected nothing more than inept parenting, Catherine’s parenting-alienation behaviour has been evil.”

Or the one I enjoy most,

“The New Shorter Oxford English Dictionary defines,“dickhead” as a “stupid person”. That would not have been my first guess”.

Trust me when I tell you that you do not want your own attitude and behaviour to be described in similar fashion by your family court judge.

So just how can you avoid such negative characterization by the court, while radically improving your chance of a positive parenting decision in your favour, and more importantly, in your children’s best interests?

You follow the four words of advice I regularly give to all of my family law clients, regardless of their level of perceived injustice, or hostility, they harbour towards their spouse.

“Take the high road.”

It means putting aside your negative feelings towards your spouse and focusing on you and the children, specifically (and this is really the courts only consideration) why your proposed parenting arrangement is in the children’s best interests.

This approach could include, for example any efforts you have taken, or plan to take, to enhance your own parenting skills, or what plans you have to support the children through such difficult times, (ie counselling.)

Imagine the sheer surprise to both the judge and your ex when your entire  testimony, and evidence, is focused on improving and supporting, the lives of your children, rather than targeting the parenting shortfalls of your ex.

Now here’s the kicker(s) so to speak. You acknowledge your own parenting mistakes and shortfalls (which we all have as humans, and which will also give you instant credibility and trustworthiness, in the eyes of the court.)

And for the coup de grace – you acknowledge to the court the benefit of your children having two loving parents in their lives, namely you and your spouse, and how you are committed to making that happen!

Take the high road, and avoid becoming road-kill on the road of life!