Why You Need a Family Law Lawyer


WHY YOU NEED A FAMILY LAWYER

by John Schuman of Devry Smith & Frank LLP

Every person who is dealing with family law issues without the assistance of a lawyer is at a serious disadvantage. That person is going through a very emotional time in which it is difficult to see things objectively, make good plans, learn all the complexities of family law, and to interact productively with the other parties to resolve matters.  Judges think that people who try to deal with family law matters on their own have very poor judgment.


Hiring a Family Lawyer should be an investment.  The lawyer should be, depending on your circumstances, either getting you more than what he or she costs in legal fees, or preventing you from loosing more than the legal fees.  Having a good Family Lawyer will save you money.


Family Lawyers Should Help Not Harm


Family Lawyers belong to a “helping profession.” Most family law lawyers are not litigation or trial lawyers in the traditional sense.   Many of them belong to professional organizations that also include psychiatrists, psychologists, social workers and other helping professionals.  Family lawyers do spend a lot of time in negotiations or in court, so they do have the skills to “destroy the other side.”  But that strategy is more often harmful to their clients than helpful.  Family Lawyers know that  the best resolution for their clients is the one that is done quickly, amicably and inexpensively without their client giving up too much.  It is only when the other side insists on a destructive, “destroy to win” course (usually this strategy is only used by self-represented litigants), that Family Lawyers “use their fangs” to stop that type of harmful behaviour.


The first step that a Family Lawyer takes is usually to write a letter to the other party telling them their client has a lawyer and the other party should get one.   The “first letter” from a Family Lawyer almost always ends with “have your lawyer contact me.”  This may seem like a bad strategy because a case between a lawyer and a “self-represented” party should be a “battle of wits in which one combatant is unarmed.”  That is true.  But in trying to wage the battle without knowing what they are doing, the self-represented litigant often does things, accidentally or intentionally, that do more damage to both parties, while helping no one.  This is a “shoot everyone and let God sort it out”  strategy in which the self represented litigant is very lucky if all he or she does is shoot him or herself in the foot.  Some lawyers do not want to take on clients when the other party is self-represented because they have to watch while that self-represented party destroys the family and all its resources, while accomplishing nothing.


Lawyers who practice only family law, know the family law.  They know what positions are reasonable and they know what judges think. They also understand “family dynamics.”  Family Lawyers often know many ways to resolve problems and conflicts.  Shortly after they meed their clients, family law lawyers either know what the “end-result” will likely be, or because the lawyer and his client do not have enough information to determine that, they know the process that should get the parties to a resolution.


When there are two family lawyers on a case, they both probably know what the range of possible results will be, or what is necessary to know what the range of possible results will be.  Where their clients are willing to work together, the lawyers can help them both get to a solution that is “in the range” of what is reasonable for both of them.  Where their clients are angry, and need to express that anger, family lawyers try to let that happen in a way that causes the minimum of damage and will still allow their clients to resolve things afterward.  Where their clients have serious disagreements about basic facts or matters, Family Lawyers can assist them in finding ways to either resolve those disagreements, or have someone decide what is right while causing a minimum of damage.


Family Lawyers and Self-Represented People


Where one party is self-represented, a family lawyer has a slightly different role.   The family lawyer still knows what the end result will be, but the self-represented litigant does not - and often cannot see what the reasonable solutions are.  Since the self-represented person does not know the law very well, does not know the procedures to resolve a dispute, and cannot be separated from the dispute, or objective, it is often impossible to work things out without a fight.   When dealing with such a person, family lawyers try to have the “reasonable solution” imposed.


Since self-represented people do not know the law, the court procedures, or how to get to a resolution of a family dispute, they often make the whole process more time consuming, difficult and expensive.  So, one of the things that a family lawyers has to do is try to recover his or her client’s legal fees.  In Canada, the courts work on the principal that “the loser pays.”   This means that the winner gets his or her legal bill paid by the loser.  Being self-represented does not mean you will not have to pay the other party’s legal fees if you lose.


It is very common for self-represented litigants to end up paying the legal bill for the opposing party.  This is because Family Law Lawyers know what is reasonable.  They know what the judge will likely decide.  They know how to put forward a position that will allow their client to win.  Family Lawyers also  know how to show that the self-represented person, who has limited knowledge in the area, is being unreasonable and not only should lose, but should have to pay the legal bill for their client.



It is often not good enough for one of he parties to meet with a lawyer for only an hour or two to go over an agreement - especially if the agreement is not simple and straightforward.   If all the parties want the agreement to be enforceable, then they all have to see a lawyer and ensure that they not only have had the opportunity for that lawyer to fully explain the agreement, but also the opportunity for that lawyer to suggest changes and negotiate the terms.


Litigation over the validity of a domestic contract (a separation agreement, marriage contract or cohabitation agreement) where there may be problems with the contract is very expensive.  The cost for each party will be at least $50,000.00.  That litigation can happen because one party does not like the terms down the road and is abel to claim that he or she did not get legal advice before signing.  The cost for both parties to have lawyers to negotiate the terms and ensure the parties understand is much, much, much less.


A Family Lawyer Protects You From the Dangers of Family Court


A friend of mine, going through a divorce, said that the family court forms were made to look like they were easy to use for non-lawyers, but really that was just a trap to get him to put things in writing that made him look like an idiot.  That was not the intent of the family court forms.  But, unless you read all of the Family Law Rules and a lot of family court decisions, you will not know the rules about how those forms are to be filled out.  You will need to know the difference between and affidavit and a pleading.  You will also need to know when you can use “hearsay” (something told to you by someone else) and when you cannot (which is most of the time).  You will need to know when and how to fill out your financial statement.


If you leave something out , the other parties may accuse you of doing so deliberately.  If you use the wrong tone, the judge may perceive you as combative, or weak, hateful, vindictive, uncaring, misguided, ill-informed, or even mentally ill.  How you say things in your court documents is very important because that is where you make your first impression with the judge.  The judge reads your materials before even meeting you.


Family Court is not “Judge Judy.”  You do not get to tell your story or give your evidence by speaking to the judge, unless it is a trial.  All your evidence has to be in writing and it has to be served on the other parties and filed with the court.  There are actually people, who work for lawyers, who all they do is serve people and then file the court documents with the court.  Just filing documents can take many hours of waiting to be called to the court counter.  If you have not filled out the documents correctly, you may be sent away to correct them.  In that case, you will go to the back of the line and have to start over again.  Unless you don’t have a job, just filing your court documents can take more time than you have to spend.


In court, judges hold self-represented people to  the same standard as lawyers.  If you say or do the wrong thing, you can make a very bad impression.  Lawyers know, from lots of court experience, what to say and what not to say.  They know what will make a judge angry.  Self-represented people don’t.  They can ruin their whole case in seconds.   Judges do not feel sympathy for self-represented litigants.  When lawyers are involved, the lawyers are able to deal with matters in a quick and orderly fashion before a judge.  Self-represented people do not know how to do that, which means they take up a lot of time and make judges work longer.   Judges are patient.  But if they have forty matters to hear in a day, their patience starts to wane as the clock moves past 5:00 p.m.  and the people in front of them can’t figure out what to say or what documents to use, or what they are supposed to do next.   It is a little like being in the grocery check out line behind 5 over people, the first of whom is standing at the cash register going through her purse trying to find the right coupon.


Keep in mind, family lawyers usually know exactly what to say in court, and exactly how to make what a self-represented person says sound unreasonable.  If you do not have a lawyer, the opposing lawyer cannot help you, cannot give you advice and cannot support you.  A lawyers’ job is to help his or her client.  If a self-represented party self-destructs in court, the lawyer’s obligation to his or her client is to let that happen.


It is important to understand that self-represented people usually say exactly the wrong thing.  If you are in a family court matter, you are already undergoing an emotional crisis.  Your judgment is already impaired - usually into thinking that anything the other party does in unreasonable.   One of the most important pieces of advice that a client of a lawyer can ask for is “Tell me when I being unreasonable.”   In Family Court, lawyers tell their client’s that a lot.  Not because their client is deranged, or vindictive or an otherwise nasty person, but because the issue in Family Court are emotional and often parties think emotionally rather than reasonably.  That frequently causes them to say, or do, things that do not leave a good impression - although they don’t see that.


Family Lawyers Protect Their Client’s Interests and Save Their Client’s Money


Lawyers try to keep their clients from doing something stupid in court, or that can be reported to the court.  They keep their clients from blowing their case.   In the end, that saves their clients both time and money.


Self-employed people face many additional dangers in family court.  For them, not having a lawyer can result in serious problems and financial hardship.  Click HERE for an explanation.


What a Family Lawyer Can Help You Accomplish


People who come to a Family Lawyer have a problem that they need solved. There are two main ways that a family lawyer can help them solve their problem.  First, they can tell their client what the range of outcomes should be.  The client then knows when to settle, when to walk away, and when to fight.   Second, they can give their client a variety of options to solve the problem, usually many more than the client had considered.   That can help resolve disputes between people.  It is not a better solution to go to court as self-represented litigants.  If you do that, the judge gets to pick which solution he or she like best and imposes that one.


You Need a Lawyer for An Agreement


Ontario’s Family Law Act does not actually say that you need a lawyer to have a binding separation agreement, marriage contract or cohabitation agreement.  However, it does say that any of those contract can be set aside if one of the parties did not understand the nature or consequence of the agreement. As very few non-lawyers have training to understand the law that relates to separations agreements, marriage contracts or cohabitaton agreements, judges believe that they did not understand what they signed, if they did not have a lawyer advising them.  The only way to show that both parties understood the agreement is for both parties to have had meaningful advice from a lawyer.  


You cannot get a binding agreement by going to a mediator with your spouse.  The mediator may help you settle your case, but cannot finalize the agreement.  To understand why, check out this page.


Looking for a Lawyer?

The Law Society of Upper Canada recommends using Certified Specialists in the area of law where you need help. If you are in the Greater Toronto Area (including Toronto, York, Peel, Halton, Durham, Hamilton), John Schuman may be able to help you.  He may be able to help you elsewhere in Ontario too.  Use the form below to contact John:



© John P. Schuman 2014