From the Trenches of High-Conflict Family Litigation - LawNow Magazine

From the Trenches of High-Conflict Family Litigation

Never have I ever: set out to engage in high-conflict family litigation. And when I say high-conflict, I mean cases where the parties can’t put their own emotions aside to make good decisions for themselves and their children. Somehow, though, it finds me. Time and again I have tried to minimize the conflict and look to the parties’ broad goals to try to find alignment. On many files this, along with an exchange of voluntary financial disclosure, leads to an amicable resolution. Unfortunately, however, for a few cases this does not work. I am discussing these cases here.

My goal is not to break the family apart but to help the members rise to the occasion and turn their family into a restructured whole – albeit with some new holes.One might ask: why would anyone, ever, want to do this sort of work? The short answer is: if not me, then who? In other words, if I turn away tough work, will the parties end up with counsel who are less empathetic or realistic (or without counsel entirely)? Will they end up in a worse tangle two years from now because they (or their lawyers) have not addressed tensions? Or will they struggle to resolve the dispute using a civilized mechanism and instead resort to “self-help” remedies, such as absconding with children or scuffling with the opposing party? Possibly. Which is why I do my best to address the conflict myself, as efficiently as possible, and in the best venue that I can persuade the parties to attend. Despite taking on these files, I avoid trials like the plague and assume that even on the most challenging matters the parties will not require a trial.

Why do I avoid trials? They are bad for families. No Mom or Dad should ever have to sit through a day of being cross-examined on the stand about their parenting habits only to go home and make supper for their children, see to their homework and tuck them into bed as if nothing is going on. Realistically, no parent is super-human enough to do so. The tension, stress and exhaustion will of course trickle in to the rest of the parent’s activities. The result – the children are disrupted (at best) or damaged (at worst). It is beyond counter-productive to engage in damaging proceedings which are not in the child’s best interests while simultaneously arguing about the child’s best interests. As the kids say: “I can’t even!” Luckily, there is a better way.

Swiss Cheese

If not trials, how do we get people who cannot agree that the sky is blue to settle their file? My approach is what I call the “Swiss cheese” method. A high school science teacher explained it as a way to tackle mounds of homework that seemed overwhelming: rather than worrying about getting it ALL done, worry about making holes in it that gradually reduce the to-do list. The fact is that often in family law files there can never be an “end.” Children grow and change, finances change, retirements arrive, health problems crop up, etc.

Hole 1 – Triage: Stop the Hemorrhaging

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You know that you have what will likely be a high-conflict file when a court order is necessary right off the bat, possibly on a without notice basis. While going to court out of the gate is not ideal for settling the entire file amicably, there are times when the needs outweigh this drawback:

  • There is domestic violence, and a separation is not possible without an order for financial support, exclusive possession of the home or a protection order.
  • A child has been removed from the city or province and must be returned.
  • A child is in danger.
  • A party is at risk of homelessness.
  • A parent has been denied access to a child for a prolonged period, and the parent-child bond is in jeopardy.
  • A partner is intentionally running their business into the ground.
  • A partner is gambling or otherwise depleting funds or running up debts.
  • A partner has stopped paying the mortgage all of a sudden.

The court can usually deal with these issues in isolation by granting an interim without prejudice order in regular chambers. An interim order provides short-term remedies that get the parties to a position where they can begin to tackle the bigger picture.

Hole 2 – Strategy and Case Building

Now that the client can begin to see the forest and not only the trees, we assess the file in its totality. The challenge at this point is to transition from disaster control to long-term outlook. It is usually advantageous to rally the troops (engage experts) and make a litigation or other resolution plan. Would a psychological intervention be helpful? What do we need to properly calculate incomes and property division? Are the parties agreeable to resolving some or all of the issues using mediation or arbitration? Would therapy or parenting co-ordination help to transition the parties out of an antagonistic cycle? Or would court processes be more effective, such as an Early Intervention Case Conference, case management, Questioning or a special chambers hearing? Is this file well-suited to a Judicial Dispute Resolution (“JDR”)? Which issues should we address first? Once I have a plan with prioritized issues and action items that my client is happy with, then we work on the next hole.

Hole 2.0 – Coaching and Teamwork

Simultaneously, and throughout the matter, I coach my client to communicate with their ex, to help me build a strong case, to make daily choices that will aid in a favourable outcome, and to work with me as a team member. This cooperation makes my services efficient and cost effective. In particular, I begin coaching my client on how to communicate with a combative individual. Big life changes are sometimes necessary. Perhaps they need to change or seek employment, move homes, pursue vocational training, improve parenting methods, seek mental health treatment or simply start documenting everything relevant. I recently had a case where I resolved the entire matter for almost $10,000 less than I initially budgeted thanks to the amount of work my client was able to do for himself in compiling figures and organizing documents.

Hole 3 – Send an Offer

In high-conflict matters, I do not find 4-way meetings (between both partners and their lawyers) to be productive. Just ask me about the time that two clients nearly came to fisticuffs in my boardroom arguing about sex toys. There is also the issue of an imbalance of power to consider. Often if one party feels intimidated by the other, a 4-way meeting or mediation will worsen their insecurities and heighten anxiety. As such, at this stage I often test the waters with a settlement offer, on all or some of the issues. If the other party responds with even a faint trace of reasonableness, then this can be an opportunity to exit the litigation stream and save the parties untold legal fees. If there is no response, or a complete rejection, then the strategic and case building plans continue.

Hole 4 – Action

Why do I avoid trials? They are bad for families.The appropriate action will depend on the strategy my client and I have prepared (and reviewed regularly as the matter progresses). Depending on the goals and issues of the parties, this might include: court applications, case management meetings, psychologist interventions, Questioning, valuations or appraisals of property, or other alternative dispute resolution avenues (such as non-binding JDR or arbitration) of some issues. Again, my approach is to “make holes” by starting small and trying to “check off” issues bit by bit. Once it seems that as many issues as possible have been resolved through these avenues, then I will begin discussing “final” resolution options with my client.

Hole 5 – “Final” Resolution

Few high-conflict files “end”. However, they can be brought to a nearly- or semi-permanent conclusion. There are many options to do so which are cheaper and less destructive than a full-scale trial, including summary judgment or summary trial, a trial on one issue only, arbitration, special chambers applications, or binding JDR. Deciding what to do is a tricky decision for anybody, but especially for a party under the stress of personal, acrimonious litigation. I provide detailed pros and cons of the available options (including trial) and give my client time to make their choice.

More Holes Make Better Swiss Cheese

Often holes 1 through 4 need to be revisited one or more times before hole 5 makes any sense. Which means, by the time we reach “hole 5”, the emotions have had time to reduce from a “boil” to a “low simmer” and the parties are sick of fighting and just want it over with. The family, like Swiss cheese, has matured and become less acidic. My goal is not to break the family apart but to help the members rise to the occasion and turn their family into a restructured whole – albeit with some new holes. There are many reasons why another lawyer might completely disagree with this approach. However, each client whose file I have pursued from beginning to “end” with this method has left happier than they arrived.

Authors:

Erika Hagen
Erika Hagen
Erika Hagen is a partner at Crerar Badejo Hagen Family Law Group in Edmonton. Erika practices exclusively in the area of family law and is on the Board of Directors for CPLEA.
 


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