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The Cost of Going to Court: No One Wins

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Lawyering up can be bad for your mental health.

As a result of mass media, and TV and film in particular we have been very much conditioned as a culture to ‘lawyer up’ as soon as one partner declares the marriage isn’t working or is over. Let’s face it, the thousands of peaceful divorces that happen all the time do not make for interesting news or drama precisely because they are mostly free of any drama that can be monetized. So instead, after 5, 10, 15 or 20 plus years of marriage, many couples automatically just do as they see and move directly to their designated corner of the ring, ready to fight, determining how to prepare to sustain several rounds. According to Statistics Canada, the average duration of marriages in Canada remains steady around 14 years with 42% of the divorces occurring for marriages lasting between 10 and 24 years.  

Marriages end all the time and for all sorts of reasons. But is this really how we want to go out? In a blaze of supposed glory? Yes, it’s emotional, painful, there is anger, frustration, fatigue, sadness for all sorts of justified reasons. But is the courtroom really the best place to communicate, to share, to find resolution, to achieve the best possible outcomes and move forward? Remember, if you have kids together you are still in this for life.

Compelling research has long-established the irreparable damage of going to court. No one ever wins! And, no amount of court ordered “wins” will ever compensate for the damage to families’ relationships, emotional, financial and mental health. And, yet, many lawyers still push clients in the direction of court. Without regard for their vulnerability or the increased risk of mental illness of divorcing parties. Not because lawyers don’t care, but because they are not trained to recognize and control for these risk factors; nor do they conduct any prior screening. The obvious danger here is that a client’s vulnerability will be misconstrued and used in an inappropriate way. And, in many cases, that’s precisely what happens.

So, do you even need a lawyer?

We don’t call a lawyer to get married, have a baby, when there is a death. So how have lawyers and the court system laid such claim to divorce? Divorce in Canada is governed by the federal Divorce Act. However, the way a divorce is administered, and all the procedures and documents used to complete it, differ by province or territory. The Ministry of the Attorney General states that in order to legally end your marriage, you must apply to the court for a divorce. An application for divorce can only be filed in a Superior Court of Justice or Family Court branch of the Superior Court of Justice. One of the grounds for a Divorce is the completion of a one year separation period. After this time has passed you can file for Divorce. You can file this application yourself, you do not actually need a lawyer to do so.

It is always good to get advice, guidance and support from experts when faced with big changes or decisions. Divorce is a big life change on all fronts for everyone involved. Depending on the status of your relationship with your partner, how amicable or open communication is, you may consider that a lawyer is not needed, or for you. If however, there is lack of basic parent capacity, mental illness, substance abuse or impairment, risk of exposure to violence or domestic abuse, you should consult with a lawyer.  

Going to court is a blank cheque. In total, court fees are $632 to obtain a divorce in Ontario. Additional court fees of $420 are paid before the divorce is reviewed by the court. Really? That’s it? Yep. And you can file it yourself. Totally. But is that really what Canadians end up paying when they sign on with a lawyer? Not at all.

According to the 2019 Canadian Lawyer Magazine Legal Fees survey, the national average for an uncontested divorce is around $1,600 and the cost of a contested divorce ranges from $7,500 to $12,500 per person. But just ask around any friends or colleagues who have recently gone through divorce, sadly you will find these reported numbers are actually quite low.

A divorce within the legal system can take anywhere from 7-24 months. So you can imagine, legal feels quickly pile up with a billable hourly rate starting at $300+. Lawyers are compensated based on billable hours, so while your lawyer may as a decent human have your best interests at heart, the legal system is economically driven and they are not necessarily motivated to reduce conflict, reduce time, reduce fees. What does that really mean? You pay for work being done, you pay for phone calls, you even pay for waiting in court to see a judge. If the divorce proceeds to trial, the costs could increase dramatically. If a divorce is taking too long, it is often because the parties cannot come to an agreement about custody, child support or spousal support, or how they will divide property and debt. If you go to court you can expect to spend $24-90k, before reaching a trial which would easily add about $100 to $250k.

Always remember: A family lawyer can only tell you what you “might” be entitled under the law if you were to go to court. They cannot tell you if, when and how much it will cost to get those entitlements and they cannot tell you if it will cost $5 to get only $1.

What's the alternative?

Divorce is hard, but the process doesn’t need to be. Mediation has been around for decades and is growing in popularity because of its proven benefits of putting families first. Mediation is a collaborative impartial process designed to help you work through solutions to achieve better outcomes. Co-mediation is more specialized, where trained mediators work together as a team bringing expertise from both mental health and law and take a more holistic and integrated approach. Co-mediation process can be inclusive of separation agreement, and generally can be completed within 2-6 weeks and costs $2,500 – $6,000 split between both parties. Quite a drastic difference when compared to legal fees and time spent in court!

Each couple ultimately needs to determine what they think is best for them and their family. The choice is yours. Your whole family lives with it. It is important to know that there are options and understand your actual legal requirements. But divorce and separation is not all about the law. In fact, the legal component of separation is considerably smaller than all the other needs of your family. Learn more about the difference between mediation and litigation and decide which process is best suited for you and your family.

Blog posts and podcasts are for informational purposes only and do not constitute legal advice.

About the Author

Laura Tarcea

Laura is a family mediator dedicated to supporting families through divorce or separation. With a background in Mental Health, Research, Program Development, and a Master of Laws in Dispute Resolution, Laura brings valuable insight and critical knowledge to parents. She strongly believes that a healthy co-parenting relationship will protect children from short-term and long-term damage. As such, Laura is a supporter of out-of-court processes to help equip parents with appropriate tools to succeed in their next chapter.

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