Settling Property WITHOUT a Lawyer
 
First - Set Guidelines for you and your partner/spouse
 
Normalize Disagreement – disagreement is ok, and is to be expected…  neither of us will get excited or angry as a result of disagreement.  It’s simply an obstacle that we will address as part of the resolution process

Related to above – we will be respectful – we will speak to each other in a respectful fashion;
 
We will NOT allow ourselves to lose focus to issues not before us.  We are discussing property division, not parenting, not support, not personal issues...  and we each reserve the right to suggest to the other, respectfully, “I believe we’re getting off-point”
 
Understand that negotiation of an agreement is not a “one step” process but will involve a number of “agreements” that then lead to the main agreement.  Each one of those agreements, however, is a positive step establishing trust and a willingness to attack “the problem” and not each other.

Agreement #1 – Screw the Lawyers 

The most immediate agreement is that both of you wish to avoid giving money to lawyers if at all possible.Lawyers, while charming, lovely people will quite likely do just fine without the two of you contributing more to THEIR children’s university costs or the purchase of their new home in Scottsdale, Arizona.
 
I have yet to raise this issue and to have anyone say, “No, I would really rather give money to my lawyer than to have it in my own pocket.”
 
This seems trite – however, it is very helpful to come to this as “Item 1” in your agreement, and to return to that if things become difficult.
 
 
Agreement #2 – Valuation Date

Agree upon a valuation date – which could be the date of separation, or some other date if finances continued to be commingled for some time – if there is a disagreement, the first of the month immediately preceding the meeting should be the default absent other agreement.
 
This is usually not contentious, but it is very helpful to agree on the date to be used as you will likely be obtaining bank and investment statements and it’s very helpful to have a clearly understood valuation date.   Once this date is agreed to, you have Agreement #2.
 

Agreement #3 - Define the Assets
 
1. Decide who will begin – flip a coin if desired, and the first person will list what they believe to be the significant assets of the relationship – WITHOUT DISCUSSION OF VALUES – THAT COMES LATER

2. After that person is done – the second person is entitled to then:
- Add any assets they believe have been missed; and
- Make any comment regarding assets they believe are not properly included in the discussion – those assets not being “removed” form the list but followed by a question mark (“?”) to signify there is an issue regarding their relevance
 
3. The first person then completes their own response to signify whether any of the added assets are in issue, and marks those with a question mark.

CONGRATULATIONS – YOU HAVE JUST COME TO AGREEMENT #3… regarding what assets MAY need to be divided.
 
Agreement #4 - Removing Assets in Issue (Exemptions)

Under most jurisdictions, including Alberta, certain types of assets are not divisible (they come out of the “pile” of assets to be divided) – and we typically refer to those as “exemptions”.
These include:

1. The value of assets owned at the date of commencement of cohabitation IF traceable to presently existing assets.
 
 - For Example – a home owned pre-relationship, or savings that went to purchase a home that you still own… however, if funds were expended (Honeymoon, living expenses) the exemption is lost
 
2. The value of assets received by inheritance or gift from someone other than your partner/spouse as at the date of gift or inheritance – again, that must be traceable to presently owned assets;
 
3. Proceeds of an insurance settlement or legal claim for loss not related to loss of property (personal injury typically) – again, if traceable to presently owned assets;
 
If either party has assets falling into one of these categories – the value on the date in question (date of marriage, date of receipt) is not shareable, BUT increase in value IS shareable.

Other assets may also be in issue – for example, occasionally there are arguments over possible “future assets” (future inheritance) – if there is a serious issue, at that stage you will likely require additional legal advice… keeping in mind the cost of litigation to establish what might be a questionable claim (would you place $50,000.00 on the red square of a roulette wheel?)

With a little bit of work – you should be able to now come to agreement on what assets WILL be divided – and another block will be set by Agreement #4, which is what assets you agree ARE to be divided.
 
Agreement #5 - Asset Valuation

This is more difficult and more likely to result in disagreement – but as above, THAT IS OK AND IS NORMAL.
Go through the list, one item at a time, and provide either your opinion of value – or it is defined, the actual value (bank account balance as of the agreed valuation date.

As per the above, after person one does this, person 2 reviews the list and provides their opinion as to the items they agree to (YAY!) or the items they do not agree with (NORMAL), providing their own opinion of value – or, if they simply feel they do not agree, but don’t have their own sense of value, they can just put a question mark beside the value.

Once this is completed you will have a list of all assets, and an indication of which items are not yet in agreement.

Now the task becomes how to resolve items of disagreement.  At this stage, as a mediator, we would engage in “brainstorming” – each person giving ideas as to a process to resolve the differences… which could include:

• YOU just agree with ME;
• Pick a number in the middle;
• Hire an appraiser
• Jointly obtain online values of similar assets and see if that facilitates agreement
• Flipping a coin
• Etc., etc.

 
Then – the two of you review the ideas, and pick the one that the two of you agree upon – understanding that if you don’t agree on a process, you may need to hire a lawyer and go see a Judge (generally, a bad idea).
 
Certain types of assets are not easily amenable to valuation on your own – including businesses, pensions, minority interests in property (1/10 share of lakefront cabin)...
 
For example – particularly in Alberta where Government Pensions have changed, the “Commuted Value” the pension authority provides is NOT the value of the pension and you are well advised to hire an actuary to value the pension as commuted value could be less than ½ of the actual pension value.
 
As well, some assets include potential tax (RRSP’s, business property).

Where you have assets not easily amenable to valuation on your own, or that may require specific tax advice, you are best to table those assets for now and seek advice on the best course of action to resolve the valuation and tax issue.Often a jointly retained Accountant can provide assistance in this regard.
 
If you do come to a stalemate on any particular asset or assets – you are still not left to go to court and pay lawyers thousands and thousands of dollars.One possible solution would be to find a reputable, experienced family lawyer and ask them to “arbitrate” items of disagreement.This does not necessarily mean a full-blown lawyer/lawyer/arbitrator arbitration – you could hire a family law arbitrator to make an impartial decision without lawyers being involved.
 
DEBTS – as much as we would like to forget about debts, the assets to be divided are NET of liabilities.This is usually not a difficult process and requires production of statements to establish amounts owing at the agreed valuation date.
 
Once this process is concluded – with a little work and patience you will come to Agreement #5 – valuation of assets and liabilities, leaving you with the net shareable value (assets less debt).
 
 
Agreeement #6 - How do we divide? Who gets what?
 
At this stage it is worth noting in Alberta, there is a strong presumption of equal distribution of net assets.  Absent significant evidence of waste or wrongful use and disposition of assets (assets lost to gambling, drug use, etc.) most cases are going to result in a 50/50 distribution of net assets.

Who gets those assets is up to discussion – and to a great extent, this will often be easy to resolve – usually people will keep their own bank accounts, vehicles, etc… but you may need to have discussion on assets where both parties would possibly like to keep that particular asset.  In such a case – you can discuss (respectfully) why it would make more sense for you to keep a particular assets – but if there is a stalemate, you could simply agree to “sell it” to the highest bidder.  “I want the house, and I’ll agree to take it for $400,000.00!”   No – I’m willing to take it for $410,000.00… etc.

This is generally rather uncommon – however, keep in mind again, the cost/benefit of continued conflict vs. agreement.
Often once you align assets to the two of you – you will then end up with a balance owing to one person or the other.  This is where you should discuss how and when that will be paid.  Typically, parties separating do not wish to stay connected, and as such, if time is needed to complete payment it should be relatively short (less than 24 months typically) and should be secured against assets to prevent loss on bankruptcy.  It should also carry interest at something beyond normal mortgage rates, as neither of you wishes to be a bank – so quite typically we discuss something like two percent over the current prime lending rate for a major bank.

Once you have decided on who gets what, and what the difference is, and how and when it will be paid – you have basically settled your property division – Agreement #6.
 
7. NOW Comes the Lawyers – Paper the Deal

In Alberta, to have  a binding property settlement which is not subject to challenge down the road, you must have independent legal advice and as such, one you believe you have an agreement – you should write that down, and take it to TWO SEPARATE LAWYERS for independent legal advice on the agreement – and to assist in fine-tuning any issues that you may have neglected to consider:

• Did you discuss Canada Pension Plan credits?
• How is payment over time to be best secured?
• What happens is someone breaches the agreement?
• What is you find out later the other person lied or hid assets?

Typically, the revisions resulting from independent advice are modest and while this WILL cost some money, it will pale in comparison to what you would likely have spent if you hired lawyers to negotiate the whole deal.
 
CONGRATUALTIONS!!  You have avoided contributing to my next holiday in Mykonos – well done! 

I've been a divorce lawyer for about 34 years.  And in that time, I've been prone to navel-gazing about what it is I do, and how I can do it better.  See - the great thing about being a lawyer, is it's always a growth experience - if you let it.

So - as part of that growth experience, I found a link on Twitter to a book, "Lawyer Forward", by Mike Whelan.. and I found it particularly interesting and rather inspiring actually.  And it caused me to consider, in a more focused way, what it is that I do. 

Beyond that, Mike answered a particular question that I hadn't really considered too deeply until today:

Why do my clients need a lawyer?

Odd question, 34 years into a practice, no? I guess the answer seemed relatively self-evident.  I have a law degree.  I "know" the law (by which I mean, I have a general understanding of the law, which is then supplemented by my ability to research to gain a more current and specific understanding of the law).  Beyond that, I know about legal procedure - how the Rules of Court work, and how matters proceed from the issuance of a Statement of Claim, to trial, and then, occasionally to an appeal.

Isn't that it?  My law degree and my capacity to understand the rules and regulations make me indispensable, no?

Well.  Not necessarily.  And here's the issue.  It's why lawyers are failing to capture public trust and confidence and why more and more people are going to court on their own as self-represented litigants.

You see - the with the advent of "Google Law" - most people of average intelligence can do basic research and then from there, with the assistance of a system which is slowly becoming more "user friendly", they can find their way into court and on to trial.

So.  They don't need lawyers, do they?

Or do they?

And do lawyers understand what it is that our client's need?  I'm not sure I understood it after 34 years of family law practice, until I picked up Mike's book (highly recommended btw for any lawyer who is sick of "the same old, same old" and wants to be a better and happier lawyer.)

Here's the thing that Whelan points out (among other great insights) - what a good lawyer...  what an "expert" lawyer provides is this:

a) Experience - not just years behind a desk, not just some generic experience of running on the legal hamster wheel of legal practice, but experience in paying focused attention to a specific area of practice - in my case, family law;

b) Recognition of Patterns - if you're paying attention - to your clients, to the other party, to other lawyers, and to judges, you start to see "patterns" - things that aren't written down in a book or a statute anywhere.  Things that they don't and really can't teach in Law School, or anywhere.  Over time, you begin to see how people, lawyers and judges react when certain things happen...   when someone cries in court, when someone doesn't pay their child support, when someone lies in an affidavit, when someone quits a job for a good reason or a bad reason.... when someone has their heart broken by someone they used to trust...;

c) The Ability to Convert Experience and Recognition of Patters to Solid Advice and Legal Work - which isn't always in a courtroom - most often it's in their office, explaining to a client how the pain and anguish they're feeling may prevent them from making their best decisions so urging them to obtain counseling before they make decisions on how they wish to proceed.  Or it's on the phone with the other lawyer, knowing that asserting your position is more likely to be reasonably considered if you are both polite and measured in your language.  Or it's in a courtroom where you have learned how to tell your client's story in a manner which may resonate best before the judge. 

You can't get that in a law book, and while I'm here explaining it online, you really can't get that online with a Google Search.  You can get a flavor of it, perhaps.  You can get some sense of it.  But the value of having someone who has watched things happen - who more importantly - has "paid attention" to those things, is the real value of a decent lawyer.  That is what you're paying for.   And, if a lawyer is good at what they do, and can apply those patterns, quite often they can actually save you money - by facilitating settlement BEFORE litigation occurs. 

So - there it is.  And if you're  a lawyer, time  to start paying attention.  Grinding out work ("Churning" Whelan calls it) over many years, really doesn't make you a good lawyer.  it's about understanding, in a fundamental way, what's happening in and around you.  It's about being curious.  It's about always growing.  It makes life interesting, and makes us better lawyers.

It gives us "value" beyond a law degree.

Brian Greenspan has recently published an article, being rather critical of our former Federal Justice Minister, “Did Jody Wilson-Raybould understand her role as attorney-general?”

In his article, he suggests, rather strongly, that the concerns raised by Ms. Wilson-Raybould, and her supporters, reflect a “fundamental misunderstanding of the responsibilities of key participants in our justice system.” In his article he writes that to question the appropriateness of outside influences on prosecutorial discretion exhibits a serious misunderstanding about how “justice” works.

Perhaps.  Or, perhaps Mr. Greenspan’s article is a bit of “mansplaining” to coin a phrase.

To be sure, Mr. Greenspan is a criminal lawyer par-excellence – and to suggest that I - or anyone in Canada perhaps – would have a better understanding of the criminal justice system than Brian Greenspan would be questionable.

However.

I would be so bold, as someone who is only a family lawyer, to suggest he has perhaps glossed over the issue a bit.  And, in my opinion, as a lawyer who has spent some time working to improve access to justice and fairness in our legal system, the larger truth is too important to ignore or dismiss.

And this is the thing about that.

Mr. Greenspan is completely correct.  Prosecutors cannot live in a bubble, devoid of contact or influence by the world around them – including very direct influence by the actors involved.  As Mr. Greenspan writes, “isolation breeds tyranny” and advocacy – the testing of the Crown regarding their perspective on a prosecution - is healthy and fundamentally important to assure full consideration by the Crown of all factors to be considered as they engage their duties.

But.  And here’s the big “but”.

When our jails are populated by people without the means to hire someone like Brian Greenspan to assure that the Crown is challenged appropriately – particularly for example, by indigenous people in grossly disproportionate numbers - there is a fundamental concern about the efficacy of the Rule of Law.  About the reality of the theory that “all people are equal before the law.”

And it’s a growing and legitimate concern that Mr. Greenspan, with all respect, ignores completely.

It might be reasonable to ask yourself, for example, what are the odds than an impoverished indigenous person charged with a criminal offense in this country would have the pull to cause the Prime Minister himself lean on the Minister of Justice to, in turn, to lean on the prosecution to “cut him a break.”

Or, to use Mr. Greenspan’s example, what are the odds that that same individual might be able to hire Brian Greenspan himself to meet with the Attorney general to consider his case?

Zero to none are those odds.

And, perhaps, Ms. Wilson-Raybould – being a woman and an indigenous person – was somewhat sensitive to this reality.

So. It might do for some old white guys in our profession like Mr. Greenspan and myself to consider that perspective with a little more charity. 

With the greatest of respect to Mr. Greenspan, he ignores, completely the growing sense of frustration of many Canadians that there often appears to be two sets of laws in this Country – one for people with deep pockets or friends in high places (usually both), and one for everyone else.

Did Prime Minister Trudeau “lean” on Ms. Wilson-Raybould, or did he simply provide “perspective”?  Who knows? 

But the questions raised in this case are legitimate and undeniable. 

Or maybe, like our former Attorney General, I just don’t understand.

This Monday I'm opening up a new law office - Harvie denBok Pollock - along with new partners Allan denBok and Tyler Pollock.  This will be my fourth "home" in 33 years.  After starting my career with then Paterson North (now North and Company), I opened a humble little two man office six years into my practice with Parry McDonald - McDonald Harvie - and over time, grew to McDonald Harvie MacLennan, then Andreachuk Harvie MacLennan, then Andreachuk Harvie MacLennan Maxwell... until we merged with Huckvale and Company... becoming Huckvale Wilde Harvie MacLennan, then Huckvale LLP.

And it was a good run.  No complaints, really.  Obviously, like any marriage, you have your spats - but my former partners and our staff were good to work with, and were gracious in my departure.  In fact, they are treating my wife and I to dinner on Monday night.  Classy.

So - then starts my next journey, my next adventure, running a new office with two go-getter young lawyers..  and as we await our opening Monday morning,  we're adapting to new accounting (Cosmolex.. good-bye PCLaw and good riddance), a new system in the "cloud"..  all of which I'm sure will break down and cause headaches Monday. But this is the stuff of new business.

What pleases me, and gives me comfort through these stressful changes is knowing that in a few weeks, I'll be attending Lake Louise to chair a pre-conference panel on "How to Practice Family Law and Not Go Crazy"!  If you've never been, I would highly recommend it...  a more beautiful location to kick back and share some thoughts about retaining sanity in Family Law would be hard to imagine.

So there's that.  If you're a lawyer, and haven't yet signed up, please do - basically we have a very special group of people who are going to shift gears away from the usual "this is the law" sort of thing, to a more macro look at how family lawyers (and lawyers generally) can reduce stress and trauma in a challenging area of law.  Hope to see you there!

​Having appeared before a Parliamentary Committee yesterday in Ottawa, it remains to be seen whether Bill C-78 will proceed as drafted, or whether changes will be made prior to it’s passage.

Joining me yesterday were Professor Nicholas Bala, from Queen’s University Law School, Julie I. Guindon – a Family Lawyer from Ottawa, and Laurie Pawlitza – also a family lawyer and former Treasurer (President) with the Law Society of Ontario.

The general discussion regarding the Act was more consistent than I would have expected – while no one (including myself) referred to the proposed legislation as “Re-arranging the Deck Chairs on the Titanic” (see my article with Lawyers Daily here), there seemed to be a common agreement that while many of the amendments were “helpful”, they were not going to “fix” family law to any great extent. Even the most positive proponent on the panel, Nicholas Bala, conceded that family law would remain difficult and expensive to process – though with the exception of my own commentary, there was no suggestion of a complete overhaul of the Divorce process.

Thus – my own convictions appear to be confirmed – that while Bill C-78 appears to provide some elements of benefit to those suffering through Divorce in Canada, it is hardly the “major improvement” that many suggested when word of the bill first became public.

My own most critical elements were set out in a brief submitted prior the hearing which can be read here.

Essentially, my biggest criticisms:

a) The presumptions relating to parental relocation are not helpful, and if passed, will lead to Judges becoming biased in favor of a move regarding a parent with primary care of a child, or against a move in a case of shared parenting – distracting the Court of considering all factors fully in favor of simply moving quickly to the presumption. While that may result in an appropriate resolution for MOST children – as referenced in the current leading case of Gordon v. Goertz, the court is not tasked with taking an approach to help most children – it is tasked with taking an approach which helps the one specific child they are dealing with in each specific case;

b) The specific inclusion of an obligation of take into account the views and wishes of children,without making any provision for an adequate process to assure those wishes are obtained in a sensitive fashion is likely to result in added harm to children who will be put not he spot by poorly considered approaches of parents, lawyers and judges who will often lack sufficient skill to not put a child on the spot to “pick who they love most”;

c) Efforts to encourage other family dispute resolution mechanisms – other than the court – are unlikely to make any difference where they remain optional and without consequence where parties and their lawyers ignore their obligations to at least consider such efforts;
​
d) Finally – the lack of support to assist parties in dispute in working on emotional trauma relating to their divorce will likely maintain the largely irrational approach to family law resolution which so typifies family law.

There was an interesting question from Iqra Khalid, Member of Parliament for Mississauga—Erin Mills – as to whether I thought alternate dispute resolution mechanisms should be mandatory in cases of domestic violence or abuse. My comment – there are only two courses of resolution for a victim abuse where lawyer/lawyer settlement is unsuccessful – trial, or some form of mediation. I suggested quite pointedly that with appropriate safety measures, mediation efforts are much less likely to leave the victim of abuse in a court room, facing her abuser, with a lawyer likely subjecting the victim to further “abuse” through cross-examination in what is often a brutal trial process.
​
So – with some modest re-arranging of the deck chairs, the Titanic of the divorce litigation process will continue on, it appears. At least for the time being.