By Christine A. Torry
Like many of my colleagues, I have learned some fundamental truths working in the field of family law for almost 30 years. Those lessons are what led many senior practitioners to endorse the use of collaborative practice for the resolution of family disputes.
One of the most basic truths is that despite the wish that a client may have to never deal with an “ex” again, with few exceptions, an ongoing relationship will continue for many years, usually as parents or grandparents, or for financial support.
The cases that have been resolved through the traditional court process have a high rate of return to the court, for future problems. Family separations involve ongoing rights and responsibilities whether dealing with the parenting and time share of children, child support or spousal support. And there are always changes in the future that need to be addressed. Children get older and want to change residence, perhaps live with the other parent. There are activities to decide upon, and whether they should be competitive level or recreational. Children go to university and the cost sharing has to be decided. One parent may believe a child should contribute to post-secondary education, and the other may want the child to experience Europe for the summer. A payor loses a job, or retires, and needs to have support changed. A recipient remarries. If the parties have not learned skills to help them negotiate and reach agreement on future changes, they revert to the first method used, such as court. They can’t reach agreements so they go to someone, like a judge, to make the decision for them. The cost is significant in terms of time and financial resources.
As a family law lawyer, there are many clients who I represented in a court process, that come back to the expense of litigation when they need to change something in the original order.
One client separated in 2001 and obtained a court order resolving custody, access, child support and division or property over a year later. They had 2 children; a boy born in 1988 and a girl born in 1993. In 2007, the matter returned to court as the son was in college living away from home, and the costs had to be sorted out. A court proceeding was needed as the parties could not reach an agreement directly. That took about a year of court time. The client returned to my office again this week, as the daughter is starting college in the fall and the cost sharing needs to be agreed to. It is likely that a further court action will be required to sort that out as well.
In another situation, parties were married for 10 years and were involved in court litigation for 8 years to reach an agreement on all of their financial issues. Two years later the eldest child began University away from home. Another court proceeding is needed and takes the full four years of the child’s attendance at University to get resolved. They also have a son, who is in Grade 11. Likely another court proceeding will be required in 2 years when he starts university.
A third situation was in litigation for 5 years, and was back in court on at least four occasions over the next 10 years to address issues, resulting from a payor’s lost job, and a child’s post-secondary school program extending beyond one degree.
I have represented clients in collaborative proceedings for almost 10 years. Interestingly, not one has come to see me to deal with a change. They somehow manage to do it themselves. They recognize that they need to work together in the future, and invest in creating a working relationship through the use of the collaborative process, to help them solve disputes as they arise. More importantly they don’t see the solution from a win or lose perspective. They are able to work on solutions that address everyone’s interests, particularly the interests of their children.
From my perspective, considering the anecdotal evidence, there are strong reasons why parties should choose a collaborative approach to resolving their separation. It is time and money well invested in their future.
Christine A. Torry
Willis & Torry, Barristers & Solicitors
35 Queen Street South
Mississauga, ON L5M 1K2
Tel: 905-819-2970
Fax: 905-819-8379