Debunking the myths and legends that haunt family law.
This article is the first in a series dedicated to debunking the myths and legends that haunt family law. Today’s topic? Lawyers.
Many people experiencing a family breakdown have pre-conceived notions about the role of lawyers. These ideas come from TV, the “grapevine,” past experience, etc. Some that I hear often are:
- “My ex hired a bulldog, and so I need to hire a bigger bulldog.”
- “Our situation is very simple, so I don’t need a lawyer.”
- “If I hire a lawyer then I won’t be able to go to mediation instead.”
- “Lawyers just charge a lot of money and get nothing done.”
- “My ex has a lawyer but I don’t, so I can’t talk to the other side.”
Let’s break down each of these myths.
Myth: Only a Bulldog Can Take on Another Bulldog
I tend to think that the best way to approach a snarly adversary is to listen. Just as the best way to put out a fire is (usually) to put water on it. By doing so, the adversary tends to blow themselves out of steam fairly quickly, or at least give the appearance of being unreasonably aggressive. This leaves room for the non-bulldog to step in and take a more sensible command of the situation. In other words, at risk of being cliché, it is difficult to fight fire with fire. This is not “backing down from the fight.” It is ending the fight. Ideally the role of the lawyer is to resolve the dispute – not entrench the parties and increase the conflict. Unfortunately there are times when the only option is to take an aggressive approach, but this should be done with caution rather than as the default approach.
The bottom line is that if you are interviewing potential counsel, the most important factor is that you feel comfortable with that counsel before retaining them. It is often a good idea to meet or chat with a few lawyers to find one that just feels right for you. It is a big decision and not one to make lightly.
Myth: Family Law is Simple and No Lawyer is Needed
Because so many people endure family breakdowns, it is assumed that the process is quite streamlined. While it can be, and while many people do conclude their matters without counsel, there are risks in doing so. In most client interviews that I conduct, the party I am speaking with is surprised to learn something very significant about their case that they did not know before. Maybe they will be entitled to spousal support and had thought they would not be. Maybe they had “waived” child support and learn that they can seek back-pay. Maybe they thought the mom would get the kids by default and learn that they have a strong case for shared parenting. Maybe they thought it would be easy for their ex to hide money and learn instead that they are entitled to complete and substantive financial disclosure. Maybe they thought there was nothing worth “fighting over” and learn that their ex’s pension is considered family property.
There are also some things that ONLY lawyers can do – such as providing Independent Legal Advice (“ILA”) on family property agreements. Many people are surprised to learn that family property agreements require ILA for each party to be formalized or fully enforceable.
Lawyers are also experienced and can help to streamline proceedings and avoid unnecessary delays – especially in uncontested situations. Lawyers generally try to identify potential problems in the future that may not be identified otherwise and prevent such problems before they even happen. Even a 30-minute chat can be enormously beneficial.
Myth: Lawyers Mean Litigation
The Rules of Court, the Code of Conduct which governs lawyers, the Divorce Act, the Family Law Act, and just about everything else that guides family lawyers requires or encourages us to settle our files expediently. We must also provide our clients with all available options for doing so. Hiring a lawyer does not mean that you cannot go to mediation, it does not mean that you have to go to court, and it does not mean that you’re giving up on finding an amicable resolution.
Most (if not all) lawyers are happy to:
- refer clients to therapists for co-parenting communication strategies,
- refer mediators,
- explore options like judicial dispute resolution, settlement meetings, arbitration, etc., or
- collaborate, in the general sense, with all involved parties to find sensible solutions.
Some lawyers even take files on a strictly no-litigation basis, called “Collaborative” family law.
Myth: Lawyers Waste Money
There is no denying that, unless a person qualifies for Legal Aid, legal counsel is expensive. However, there are many ways to minimize the expense. Some lawyers do not charge for all or part of an initial consultation which can help you get organized, understand what direction you wish to go, and prevent costly missteps. Some lawyers take on only certain part(s) of files, such as:
- drafting documents but not appearing in court,
- providing repeated consultations to guide you along the way, or
- providing only Independent Legal Advice before you sign an agreement.
There are an infinite number of possible approaches to take on various files.
My experience has been that I am least cost-effective either when the opposing side is being unreasonable or excessively litigious, and/or when my client prefers to litigate rather than negotiate. Conversely, my experience has also been that I am most efficient in my services when my client sees me as someone to collaborate and problem solve. Then we can both work together to prevent and solve problems as efficiently as possible.
Myth: If I Have No Lawyer I Cannot Contact My Ex’s Lawyer
If you do have a lawyer, it is true that the opposing lawyer cannot speak to you without your lawyer present. However, if you do not have a lawyer, then you are your own lawyer (aka: “self-represented”). In this case you should communicate with the opposing lawyer to try to bring about agreements and resolution. However, the other lawyer may ask that you communicate in writing (such as email) rather than verbally (such as on the phone). There are a lot of reasons for this, but the fact is that keeping communications in writing can be helpful to both sides as everyone can look back at it later to clarify what did or did not occur. My colleague, Sarah Dargatz, had some further insights into this issue in a 2019 LawNow article.
In conclusion, while not all lawyers are a good fit for all clients, lawyers are professional problem solvers who want to help their clients move forward with their lives. They do not want their clients to suffer needless stress or expense for the sake of a fight.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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