A made-to-measure lawyer . . .

Finding right one never more vital Divorce Act changes herald new era

Toronto Star, By Tracy Tyler, December 21, 2002

Is a mistress entitled to spousal support? Should gays and lesbians be allowed to marry? Does a divorced dad have to pay child support if he quits his job?

Family law is full of thorny issues. Just ask Mayor Mel Lastman, who faced his own troubles this year when two brothers in their 40s sued the mayor for child support, claiming they were the product of an affair with their mother. So far, their claim has been rejected by two courts.

Now, the Supreme Court of Canada has stirred up debate even more by ruling that common-law spouses can't automatically claim half of matrimonial property.

The court's 8-1 decision on Thursday drew a clear line between married and unmarried couples, and is expected to put an end to thousands of property claims before the courts. But that doesn't mean it's time to fire your family lawyer.

Earlier this month, the federal government unveiled plans to reform the Divorce Act, a move that could make finding the right family law specialist more important than ever.

Legislation introduced by Justice Minister Martin Cauchon would abolish the terms "custody" and "access" in favour of a new system in which separated and divorced parents will be jointly responsible for their children.

Under the proposal, it will be largely up to parents to resolve such issues as how much time a child will spend with each of them.

Mediators will be available, but a judge will step in only when parents can't agree or the situation involves violence.

While Ottawa predicts this new approach will make the divorce process less adversarial, the opposite proved true in Australia, where a similar move six years ago unleashed an endless round of fresh court battles.

With the possibility, then, of a similar litigation explosion in Canada — where more than a third of all marriages already end in divorce — it's never too soon to start planning. What better time to seek out a made-to-measure family lawyer?

"The special aspect to hiring a family lawyer is that you're dealing with a very personal problem. It's the end of one part of your life and very painful," says Gerald Sadvari, a leading family lawyer in Toronto. "So you really should have a personality fit.

"Oddly enough, most clients who you get do fit your personality as a lawyer," says Sadvari, who has encountered an array of lawyering styles in his nearly 25 years of practice.

Sadvari has dared to label them in a yet-to-be-published novel he's written called Split Decisions. There are the Bombers, for instance, the Pit Bulls, the Rescuers and the Sympathizers, the Anal or Passive-Aggressive types and the Sleazes.

And of course there's the lawyer who is Reasonable, Speedy and Fair. "Everyone's going to say, `That's me,'" Sadvari says. In reality, however, "it's like body types," he says. "A lot of us are mixed."

In keeping with Sadvari's observations, the Star decided to check out the different approaches family lawyers might bring to a case. We presented five family law experts with a hypothetical fact situation and sampled their advice.

A word of warning: While ruthlessness might seem an attractive quality in a lawyer, "the days of the real shark" are pretty much over, says Toronto lawyer Phil Epstein, a veteran family law specialist. The emphasis now, particularly in Toronto, is on attacking family law problems at the beginning, which means more cases are resolved through mediation and settlement.

Still, "there are a lot of different family lawyers with a lot of approaches," says Epstein, who drew on his years of hard-won experience and came up with the following hypothetical scenario.

The scenario....

My husband is the CEO of a private company. We're very well off. We have a home in north Toronto and a cottage in Muskoka. I don't know how much money my husband has. He's always kept control of the finances. He had an affair five years ago. He hold me he's given her up. I've just discovered he hasn't. She's a key employee in his company. We've got three kids: 7, 10 and 12, all in private school. I don't really have any money of my own. But I've been secretly skimming the household budget for the last five years to pay for this. So I have enough money for your retainer. I think all my friends know about this and are secretly laughing behind my back. "I want to crush him. I want him out of the house. I can't stand looking at him."

What the lawyers recommend ...

HAROLD NIMAN
Home Base: Toronto
Reputation: Aggressive

"Divorce cases are full of bitter people. Although you may feel like you want to `crush him,' it may be better for you to deal with these feelings in counselling. The court process is very expensive when people use it to vent their anger.

"Ideally, we will be able to negotiate a separation agreement with your husband. He will hopefully agree to leave the matrimonial home, but if he chooses not to do so, it may be difficult to obtain a court order removing him from the home.

"A separation agreement is a comprehensive settlement of all your claims and obligations and will resolve three major issues: the children, property division and financial support.

"In order to determine the appropriate property division, your husband will be required to provide full and complete financial disclosure. In that disclosure, we will ascertain whether he has an interest in the `private company.'

"If he does, we may need to hire a business valuator, although he will initially be required to value his interest. He will also need to disclose his income and whether he has been diverting income to his girlfriend.

"Essentially, the value of property accumulated during the marriage (unless there has been an inheritance or gift received) is divided equally. There are exceptions, but that is the general rule.

"In addition to child support, you will be entitled to spousal support. As a general rule, you can assume that the support for yourself and the children will be roughly between 40 per cent and 50 per cent of the net disposable income of your husband. The amount of spousal support will, however, depend in part on the property settlement that you receive."

HARVEY STROSBERG
Home Base: Windsor
Reputation: Hard-nosed, fearless

"The first thing you would do is you'd ask her whether or not she really is certain he is having an affair, because she might be paranoid. He may not be. He may be travelling out of town with a woman executive. So, I would want to confirm that. one way or another.

"I would hire a private investigator."

"She might not know about his finances, but I would say, `Have you looked around the house to see if there are any documents indicative of financial circumstances? Because there's not a husband in the world that doesn't leave an income-tax return or something like that lying around."

"You'd also want to ask her whether she works and what her education is. Another thing you'd want to know is what assets they had when they were married. Did they start with nothing, which is the usual? What you'd tell her is, it maybe a surprise to him, but she owns half of what they've accumulated. So she really does have money of her own. (Strosberg would also ask if there was a marriage contract or prenuptial agreement)

"But I would say to her, `Look, are you sure you really want a divorce? You have a beautiful life, a husband and three kids who really love their father. I would try to encourage her to get counselling. I would tell her that what she should do is seriously consider trying to work the marriage issues out.

"So many men don't think about the consequences of an affair and, when faced with the reality of splitting up their business and finances and paying child support, that's usually a serious motivator in getting them to reconsider reconciliation."

If it's really over? Strosberg said he would send the husband a letter, inviting him to negotiate and provide details of his financial situation. Meanwhile, he would start drafting court documents. "Frankly, that's often the only way you get the information you need, once the lawsuit gets started."

SHIRLEY GRIFFIN
Home Base: Orangeville
Reputation: Empathetic but firm

"My first concern would be the kids. I know she's angry - and she's right - but she has to take into consideration the effect of her anger on the children.

"What I say to people who tell me things like this is, `I want you to go away and think about whether you want me to act for you. I need a client who is mentally strong, but right now you sound weak.'" I would tell her that she should take into consideration her own mental health and maybe talk to a counsellor.

The very thought of divorce is likely also fuelling the woman's anxiety, Griffin said. "One of the things I would also ask her is whether she wants to have a divorce. The thought of the Big D is often horrifying to a woman She pictures herself out on the street." Often a woman feel: much better if custody and support issues can be sorted out by negotiating a separation agreement, she said.

"I always start by trying to settle things. I would get in touch with the husband by letter and ask to have his lawyer contact me. The first thing I want from him is financial information - income-tax returns for the last three years, business statements. Let's put it all on the table. If it doesn't end up settling, I will go to court.

"I find that by the time you file that first motion, things start to settle down."

Griffin said she would also try to help boost her client's selfconfidence by explaining that a divorce doesn't mean life's over. For some women, it's a chance to pursue a career they've always dreamed of. It might even be possible to get the husband to pay for education or training as part of the settlement.

"My aim is really to stabilize the family as much as possible. I had one woman say to me she did not like my approach. She was really here to emasculate this man and take him to the cleaners. "I said, `Guess what? I don't do that. 'I believe if you can help them see this from a calmer perspective, it's better for them and better for you, too."

PHILIP EPSTEIN
Home Base: Toronto
Reputation: Eminence grise, the dean

"I'd recognize that the woman is badly hurt and is humiliated. Her comment about her friends laughing behind her back is an indication of her loss of self-respect and self-image, which is partly driving her anger and her fear of what's going to happen.

"So I think one needs to deal with this on a couple of fronts. One is to discuss delicately with the client the idea of getting help from a family therapist, to help her with what would be a potentially trying process. I would emphasize that she doesn't need a psychiatrist - she's not mentally ill.

"She needs a support system, and a lawyer shouldn't be her therapist.

"I would explain to her carefully that she's entitled to be supported for the rest of her life, in the style to which she's been accustomed, and entitled to share in her husband's property. And that in order to determine this, we need to get some financial disclosure from her husband.

"The manner in which we'd proceed would depend on how reasonable her husband wants to be, how guilty he feels about his conduct and how reasonable his lawyer is.

"In other words, has he picked a lawyer who wants to get to the bottom of things and negotiate - or one who wants to fight over every penny?

"I would encourage her to initiate proceedings by letter, rather than court proceedings, because there are no issues of violence and no safety issues.

"We would write to the husband and invite him to respond and commence negotiations. If he didn't respond, we would do it again.

"And if he didn't respond again, we would commence court proceedings and get his attention that way.

"But I would tell her that, before we do any of that, she should really consider carefully whether the marriage is over and maybe have a couple of therapy sessions. And I would decline to take instructions to do anything at the first meeting."

GERALD SADVARI
Home Base: Toronto
Reputation: Cerebral, a strategist

"I would tell the client that she will regret attempting to destroy the father of her children and it would cost more money and time and emotion than she can afford.

"Unless he is violent, we cannot force him out of the matrimonial home, but perhaps we can persuade him through his lawyer that it would be the best course.

"I would first of all ask her to prepare her financial disclosure and give me as much information about her husband as she can, including any financial documents that are lying around the house (and not locked or sealed)."

"At the same time, I would write the husband a personal and confidential letter saying that I was acting for his wife, the marriage was over, that we wished to negotiate an amicable settlement, that we require complete prompt financial disclosure and ask him to put me in touch with his lawyer.

"I would also ask the client if she has a counsellor and suggest that it would be good for her and the children to talk this over with someone."

"In the meantime, I would do title searches of the two properties (because often clients misremember how title is held) and see if I could find any filings with the Ontario Securities Commission, etc., for the particular private company."