Over the past 20 years or so, the family law profession has seen an increase in people trying to work out agreements and court matters for themselves without the need for hiring lawyers. There are many “do-it-yourself” websites and sample agreements, and court documents that can be found online. It seems easy enough, and for some clients, this may make perfect sense.
But more often than not, I am contacted by clients who had decided to try and save some money and be their own lawyer and reach a deal with their ex, only to find out that a) the agreement they reached is not properly drafted according to Canadian law, b) the agreement they reached is not enforceable by the courts, or c) the agreement they reached was not in their long-term best interests. They saved a little bit of money initially, only to see themselves spend a lot more money later on.
It did not have to be that way. I am asked by some clients how they can do a divorce “on a dime,” and I tell them that while there is a need for lawyers in family law matters, the lawyer should not walk away with more money than the client does. How does a client prevent this from happening? Well, if you are going to consider entering into a simple agreement, make sure you get a lawyer to look it over for you, to protect your interests, to tell you what you are entitled to, and to tell you what you are giving up. Once you know these points, you will be properly informed to make your decision. In other words, you need “independent legal advice,” referred to in the rest of this blog by the common acronym “ILA.”
As part of my practice, I am regularly contacted by clients who have separated and want to resolve their matter without going to court. They will often come to see me with an agreement already prepared by their ex-spouse or a lawyer representing their ex-spouse. Sometimes, they have an idea of my role – to offer them ILA – but they do not understand my role more often than not. They think I am simply there just to witness the agreement or to notarize it. When I tell them that is not what I am here to do, they sometimes look at me as a “used car salesman” who is trying to up-sell them on a limited warranty or undercoating for their already rusting car. They get even testier when I tell them that our initial visit is likely one of several appointments. As I say to my clients, let me explain. It is not rocket science.
When a client comes to see me for ILA, I have a checklist of things to ask them, both for their benefit and my own, to ensure that I am giving them proper service. Generally, I ask them about their background, their ex-spouse, information about the children, and their assets and debts. I then ask them questions that I call “possible landmines” – these are issues that are potential problems that I want to know about before they are accidentally uncovered, and the agreement is blown up. Such “landmines” include:
- Any historical or recent domestic violence
- Any historical or recent criminality
- Any historical or recent child protection agency involvement
- Any historical or recent immigration/refugee concerns
- Any historical or recent mental health issues
- Any historical or recent drug/alcohol/substance abuse
- Any historical or recent attempts at self-harm
- Any historical or recent transiency or flight risk
- Any historical or recent hiding money, unemployment, or underemployment
In asking these questions, I am looking at whether there is any pressure, duress, or undue influence on my client’s part to sign an agreement, contrary to their best interests. I also want to know about these landmines vis-à-vis both parties, as an unfair agreement that is one-sided in my client’s favour could be just as problematic for them down the road. I explain to the client that a bad deal signed now could be set aside by the courts later on, costing them a lot more time and money (and resulting in an unwanted call to my liability insurer as well)
After going through these questions, I then advise the client that I need to do a basic analysis of the parties’ financial situations. This ensures that there has been a proper exchange of financial documents, such as the parties’ tax returns (personal and corporate), notices of assessment, and year-to-date pay stubs. Depending upon what this “financial disclosure” tells me, there may be a need for more information, such as bank and credit card records. I explain to clients that this is similar to a doctor asking for lab/scan work to be done – I need the test results to tell me what I am looking at, and without them, I cannot correctly diagnose the situation.
This is usually the first “make or break” test of the lawyer-client relationship. Many clients are reluctant to provide this information, as they have been told by the other side (or the other lawyer) that if they make an issue of the financial or property terms, the deal is off. The matter will be going to court, or they are made to feel guilty and are told, “why are you/your lawyer so greedy?” The more likely one party is unwilling to provide proper financial disclosure, my “Spidey senses” go off, and I am reluctant to advise the client to agree to anything.
I would rarely provide ILA without a formal financial exchange of documents. However, in those rare cases, I must still be confident that the parties are mutually aware of each other’s financial situation. If there are no red flags whatsoever, I will insert a clause in the agreement that stipulates the client understands what they are doing and are foregoing this protection to their own detriment. As a reasonable adult who has been advised to the contrary and understands the risks, the client can move forward, knowing the risks.
As you can see, providing ILA requires a lawyer’s time, skill, and effort, and it cannot be done in a “while you wait” scenario, like some other industries offer. As well, although the going fee for ILA is often small (a common flat fee in Hamilton for ILA is $500.00), I advise clients that if I must do more than my normal due diligence. Or if I discover landmines that would invalidate the agreement that requires us to re-negotiate the agreement, it may need some more time and more money. Once again, this is the second “make or break” point in the relationship – a client is within their right to say to me, “thank you, but I will go elsewhere for the ILA.” That is fine with me. I am not here to force a client to do something that they do not want to do. There may be time, money, and/or other considerations that they have not told me about that require the agreement to be signed right then and there. But any reputable family law lawyer will see the “red flag” and end the relationship rather than sign off on the matter and be a willing dupe to a bad deal. In those cases that they do not, the lawyer can usually expect a call from their insurer down the line.
Finally, I want to leave you with the knowledge that most clients appreciate the time and effort that goes into providing a proper ILA service. They understand it is not done in a “jiffy” and that we, as lawyers, have the client’s best interests in mind. On the flip side, I do not care if I upset the other side, or the other side’s lawyer, or even the client, for that matter. They may be demanding that I meet with the client and sign the ILA certificate on a Friday morning to complete a mortgage advance or real estate transaction later that afternoon. Haste makes waste, and my integrity and reputation are worth far more than any one client, file, or retainer. As I tell all of my family law clients: “invest in proper family law services at the start or be ready to divest yourself of your money/property/rights at the end.