Whether we bring court proceedings or negotiate settlements, invariably our clients will tell us “I don’t want to spend a lot of money. I don’t want this to drag out. I want the result to be “fair””. In fact, I rarely if ever have a client who tells me that they want to be unfair, quarrelsome, un-cooperative or want to spend the next five years of life in a fight. I explain that fairness is often in the eye of the beholder. What my client may consider fair is not what their spouse may consider fair. Moreover, we are seldom in a position to determine fairness and resolve matters if there has not been a sufficient exchange of information, consideration of options, ongoing legal advice and good faith discussion. This even holds true in court matters, only a tiny fraction of which proceed all the way to trial.
To determine fairness in family law, we have available certain formulas in our legislation that provide at least an objective model. For married spouses for example, Ontario’s scheme of “equalization of net family properties” provides an important framework when we deal with property division. For child support, we have the Child Support Guidelines. For spousal support, we have a “tool” which is not law but can be highly influential: it is known as the Spousal Support Advisory Guideline (SSAG). When dealing with custody of and access to children, there can be no such formula although we have in our laws lists of objectives and factors. Of course, we also have case law to rely upon. The formulas that we use help us advise clients and are mostly financial formulas. They are only as useful as the accuracy of the information that goes into them.
To work out a fair settlement does take time. Settlements are not “instant”. Although we do not seek to prolong matters, information gathering and negotiation can take months from the start of a file to completion. This is especially true in court matters.
In an up-coming blog, I will set out some of the reasons why the handling of a family law file can take time to resolve fairly and how you and your lawyer can make the progress speedier and more efficient.