Tag Archives: Family Law Toronto

Ways to Keep Your Legal Bill Down in Family Law

06 Wednesday May 2015

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Ways to Keep Your Legal Bill Down in Family Law

The cost of retaining a family law lawyer can range from cases where a client only needs a one hour consultation to straightforward and amicable separations where each party just needs some advice and someone to draft a Separation Agreement, which might be as little as four hours of legal work, to serious contested matters that are fought in court which might take many hours of work and be a significant expense. There was a case reported in The Globe and Mail recently where two separated parents spent two million dollars on lawyers between them fighting about access issues in court. While that is clearly exceptional, I have often had clients who have had previous lawyers issue what I consider to be shockingly high bills for the issues in that particular case.

The goal of lawyers and clients alike should be to achieve a fair and reasonable settlement, whether through agreement or, if necessary, from a court order, while spending as little in legal fees as is necessary to achieve that result.

Here are some issues that you might consider when thinking about how to minimize your legal fees in a family law matter:

Before you retain a lawyer:

-Check to see who will be billing time on your case and what their rates are. Consider whether you want to have multiple people on your file.

Obviously the hourly rate of the lawyer who is going to work on your case is a factor in the overall cost of your case. You should also know who else will be working on your case. Will there be a clerk? Will there be junior lawyers? Will there be an articling student? If so, what are the rates of each of those people? While there can be advantages of having multiple people working on your case, consider the time that each person working on your case will spend becoming familiar with the facts of your particular matter. Are you going to be paying for meetings where one member of your team briefs another member of your team on your case? If your matter is going to go to court, how many people on your legal team are going to come to court and are they all going to be billing you for their time? Consider whether it would be better to have just one person working on your case.

-Check if you will be charged for photocopy pages, for mileage, for parking, for stamps, for other things of that nature.

Some law firms charge you for each piece of paper that they use in your case. In other words, they not only charge you for the time that it takes to write a letter, as any lawyer would, but they charge you for each page of paper they print or photocopy. The per-page rate is often far higher than what seems reasonable. I had a lawyer once tell me that she made $100,000 in a year just in charging clients for photocopy and fax pages. That doesn’t seem right to me. The same is true for mileage. A lawyer will charge you for the time that he or she spends getting to court, which makes sense. Some lawyers will also charge you a mileage fee for that driving. You should know what that fee will be and consider that added cost. My personal policy is that I don’t charge my clients for any of those things. What my clients pay for is my time and any substantial costs I incur on my client’s behalf such as process server fees or court filing fees.

-Check if the firm has a policy about charging you more for a successful result.

I have seen retainer agreements in family law where there is a clause about charging you extra for a particularly good result. That also seems wrong to me. Any lawyer you hire should be trying to get as good a result for you as is possible. A lawyer is already charging you a substantial amount of money for the time that they spend. Your lawyer should not charge you an extra fee for doing a good job. That should be the expectation for all cases.

After you retain a lawyer:

-Put your best foot forward to try to settle your case

Almost all family law cases end in a settlement. Very few cases go to trial and even fewer cases need to go to trial.  The single biggest factor in the cost of your family law case is likely to be how long it takes to reach a settlement or final order. You should do everything you can to make it so that you reach that settlement as quickly as possible. Be as generous as you can in making a settlement offer to your ex and make offers as frequently as you can. Make sure that if things have to go to court it is because the other party is being unreasonable and not because it is you who is being unreasonable.

-Consider whether you need an email a phone call or a meeting with your lawyer.

While you are going to need to communicate with your lawyer to give them the information that they need to do a good job, that communication can be a big part of your bill. Before you call your lawyer, consider whether it will take your lawyer less time if you send an email. Some things are best done on the phone or in person but many times an email is just as good or better for communication and will take your lawyer less time.  If you do call your lawyer, make sure your phone call stays focussed and that you are not simply venting or using your lawyer as a therapist.

-Be diligent on doing what is asked of you so that your lawyer doesn’t need to send reminder emails

You are going to be given homework from your lawyer. For example your lawyer will ask you to gather your financial information so that he or she can draft a Financial Statement for you to swear. Do that homework promptly and deliver it to your lawyer all at once. You don’t want to spend money having your lawyer follow up with you on things that he or she has already asked you for.

-Make sure you will be sent bills on a monthly basis so that you can monitor how things are going

Your legal bills should not be a surprise. Regular monthly billing will allow you to monitor how things are going and how much your case is costing.

How do you count time to know whether you meet the 40% rule for child support?

28 Tuesday Apr 2015

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How do you count time to know whether you meet the 40% rule for child support?

Before you read this post about one of the finer details of child support, you might want to read my explanation of how child support generally works. You can find that at https://hutchesonlaw.ca/?page_id=24

One of the questions that often comes up in family law within the issue of child support is, how do you know if someone falls above or below the 40% threshold? There are quite a few court cases where a parent has been close to the 40% mark and there has been an argument about whether that parent falls over or under the threshold. If you are interested in reading one of the leading cases on this issue, you might start with this one: http://www.canlii.org/en/on/onsc/doc/2013/2013onsc1801/2013onsc1801.html?searchUrlHash=AAAAAQAVTC4uTC4gdi4gTS5DLiwgWzIwMTNdAAAAAAE&resultIndex=2

Usually when people are trying to roughly calculate 40% they count overnights. If you are counting overnights on a regular two week schedule, the threshold is 6 out of 14 overnights. When people get into more of a fight about the 40% threshold for child support, the answer of the courts is generally to count days (in which case the threshold is 146 days per year) and sometimes to actually count hours (in which case the threshold is 3504 hours per year). What is tricky is how you count hours where the child is not with either parent. Many people would think that you wouldn’t count the hours that a child is in school or with a nanny for either parent. That is not the approach that the courts have settled on though. Hours at school or with a nanny are counted towards the parent who is deemed to be responsible for the children at that time. If a parent drops a child off to school in the morning and the same parent picks that child up from school, then all of the hours in school will be credited to that parent (the theory being that that is the parent who is on call if the school were to report that the child was sick and needed to be picked up). More controversially, if a child is dropped off at school by one parent and then picked up at the end of the day by the other parent, the courts, for example in the case linked to above, have said that the school day should be credited to the “custodial parent.” Since what the court means by saying “custodial parent” in that way is – the parent who has the kids in his or her care most of the time – that seems, to me, like it runs the risk of putting the cart before the horse. If you assume that one parent is the parent who has the kids the most and then check that assumption by counting hours in a way that credits school hours to that parent, you are very likely to find that your original assumption was correct. It is possible that if you started with the opposite assumption, though, you might get the opposite result.

So what lessons should couples take from all this? If you are creating a parenting schedule (a settlement about custody and access issues), it would be wise to consider the issue of who will come and get the child if he or she has to be picked up from school? In my view, that is not only a useful agreement to have, it is also the best test for who is caring for the children during the school day. An answer to that question will also help prevent a difficult argument about counting time to determine the 40% threshold for child support.