I was recently discussing a file with a colleague, a young lawyer. He is having trouble letting a prospective client know that there is no chance he will be successful in what he is seeking in his family law case. But even though the client has sought multiple opinions, the client does not care – the client wants to proceed on principle and, more importantly to the client, to see his ex pay for what she has done to him.
After more than 25 years of practicing law, I have realized that not only is there a right time to start a case, but there is also a right time to end it or not start at all. There’s no magic formula and no inspiration that presents itself as clear as water – more often than not, the waters are quite muddy. But good judgment comes from experience, and as we know, a lot of experience comes from bad judgment. So, here’s what I have learned about when to “waive the white flag.”
Before I proceed with this blog, you should never see the family law process as a win/lose proposition. It is not a competition, a battle, or a war. If you see the family law dispute that way, it will always be viewed as degrees of loss and rarely (if ever) a win. Your former spouse/partner is not your enemy, and your children are not the spoils of war. You have ended a relationship, and now you must decide, as adults, how to exercise your rights and responsibilities as a result of the end of that relationship. Sounds cold, but you must be reminded of that reality.
The first point I consider when deciding whether to start an action for a family law client or to end it, is to do a preliminary analysis of what the client is seeking vs. what they are likely to get if this matter went to court. Is what they are seeking realistic? Is what they are seeking even allowed under the law? I do not want to promise a client that they will get a result that no court would grant them because it is too far-fetched or beyond the scope of the law to be granted. For example, I will not represent a client who wants equal time-sharing with their 4-year-old son when they have just been released from prison after completing a two-year stint for seriously assaulting the child’s mother. If no judge in their right mind would ever grant that relief, I owe a duty to the client to be candid. By the same token, I will not advocate for a client to start an action for exclusive possession of a house in her ex-partner’s name and to seek one-half of the equity in his home and pension when they were only in a common-law relationship for two years. If the law does not allow for it, especially with some property issues in common-law relationships, we need to let the client know the law is not on their side.
The next point I consider is the time it will take to get the result. Suppose the client and his partner have recently separated. In that case, I generally advise the client to consider negotiating a separation agreement out of court or to go to mediation to solve the issues. But there is a shelf-life with such options. At some point, these processes must bear fruit. I do not want to see a client squander a year of their lives in the uncertainty of alternative dispute resolutions (ADR), knowing that the other side will use the delay in their favour. For example, when a couple separates, where the children will reside and how much time they will spend with each parent will be impacted by the concept of “the status quo.” If one party keeps the other party in limbo in ADR, just to create a false status quo where the children reside primarily with her, rather than have a shared parenting regime with her ex-husband, a good family law lawyer will put a “sunset clause” on those efforts. Suppose a client brings a motion to change child support, but that same client has not done his income tax returns in years. In that case, there is no point in bringing the motion until the client has his financial house in order (one notable exception – if FRO has made it a requirement pursuant to a refraining order to serve/file an MTC, then you better do so, because you only have 20 days within which to bring the motion).
Along the same lines as time, I have to always ask whether the client has the financial ability to mediate/negotiate/litigate this matter or to continue doing any of those resolution options. Some people see mediation and negotiations as options when there is no money to take it to court or continue with court. In many cases, the cost of these processes can get very high very quickly, without the usual benchmarks of court dates to remind a client of how much this is costing them. As for the court process, I must assess how much it will cost the client, as I do not want to spend $10,000 of a client’s limited resources to wipe out $5,000 in support arrears. I do not want the client spending $20,000 on my fees to fight over the same $20,000 she needs for the children’s braces, sports lessons, or post-secondary tuition. And I hate to ask a client to give me a trial retainer of $50,000 when the partiers are fighting over a “sentimental item” that is worth only a fraction of that amount. Not only must I do a financial cost/benefit analysis, but I must also make the client aware of the same.
Finally, and fittingly, the most difficult assessment you must advise a client to do throughout the stages of a family law dispute is to ask them what this case is “personally” costing them. Family law breakups take an emotional toll on people, and some are better prepared for it than others. For those who are not, the personal cost can be devastating. I have seen clients be successful at trial and be awarding primary decision-making of the children, only to have the teenage children decide for themselves who they will live with. Why? Look at it from the children’s point of view:
- They saw their parents wasting hundreds of thousands of combined dollars on lawyers, just for “the sake of the children,” which could have been better spent on the said children’s current situation or investing for their future/education;
- They saw their parents spending two or three long years in court, spending countless time and energy with their lawyers and litigation team, instead of spending that same time with their children and establishing positive memories that could last for a lifetime; and,
- They saw their parents belittling, vilifying, maligning, denigrating, criminally charging, secretly videotaping, threatening, assaulting, hospitalizing, lying about, and otherwise destroying the lives of the other parent, who at one point in time, they had pledged to love forever. What lesson does this protracted litigation teach the children? And if you think the children are not paying attention to what you are doing, then you are wrong!
It may surprise some, but I do have a conscience, and I have the integrity to either not get involved with or walk away from a client who simply wants to poison the well. As such, I am okay with a client who gets mad at me and calls me a quitter/loser for wanting to settle on fair terms early on. I do not care if the same client claims that I have no guts (or other certain body parts) because I do not want to take a matter to trial that will require them to give me a $20,000 retainer for a 7-day trial that I KNOW will not end in their favour. And I will gladly refer a client to someone else when I refuse to implement a scorched-earth litigation strategy, including, but not limited to:
- denying the other side any parenting time, or even yet, promise it and then cancel it
- denying their family from even seeing their cousins, nieces, nephews, and grandchildren again
- posting sexually explicit photos of their ex (when they were a loving couple) online or on social media to show what a bad parent she must be or to gather “supporters.”
- helping them to fabricate historical (yet fictional) criminal offenses
- reporting their ex to the child welfare agency for sexually abusing the children, knowing that it never happened
- contacting the ex’s employer and falsify that their ex has been having an affair with her co-worker/boss
- alleging drug or alcohol use/abuse (when it’s the client who is deflecting the issue)
- contacting CRA to have them audit the ex’s business for no reason at all
- Please note – all of these have happened, and are still happening, in some family law cases
If I am ever unsure whether I should tell the client to move on from their case and either settle it or end it, I am guided by the words of St. Thomas More, the patron saint of lawyers, whose “Prayer for Lawyers” ends with the following verse:
“God, sit with me at my desk and listen with me to my client’s tales… and stand beside me in court so that today I shall not, in order to win a point, lose my soul.”