How Family Files are Billed

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

In British Columbia, family lawyers can not take a case on a contingency basis (where they receive a percentage of the final amount awarded at the end of trial or settlement). Family lawyers require clients to pay a lump sum up front, called a retainer, which is held in their trust account to be used to pay bills as they are issued. The amount of your retainer depends on the complexity of your case and the estimate of the amount of work involved. When that retainer is depleted, you will be required to replenish the retainer to the original amount, or more if attempts to negotiate a resolution have not been successful and you and your lawyer decide together that litigation is necessary.

The amount of your initial retainer will be established at the outset upon an analysis of the work to be done. This amount can range from $2,500 to $25,000, depending on the issues and status of your file. If a trial date is set, you will have up until 60 days prior to your trial to pay your trial retainer, which is normally set between $5,000 and $7,500 per day of trial. Any funds that remain after your file is resolved will be paid to you once your final account is satisfied.

Lawyers traditionally bill in 6 minute increments, or 1/10^th of an hour. It has become growing practice by some lawyers to charge their minimum amount of time as 0.2, or 12 minute increments, for any matter taking 12 minutes or less (such as reading an email or taking a phone message). At Paine Edmonds, we have not followed this practice and continue to bill in 0.1 hour increments.

Other costs associated with your file will be taxes and disbursements. Disbursements are any costs incurred on your behalf, such as courier fees, faxes, copying, filing fees or long distance phone calls. Sometimes significant disbursements, such as medical reports or costs for a mediator, will need to be paid by you directly, especially in cases where the disbursement risks depleting your retainer.

The lawyers at Paine Edmonds know that the costs involved in litigation can be scary, and that often our clients are at risk of depleting critical personal resources while attempting to resolve your family law issues. We will engage in a cost-benefit analysis with you, so that you can feel confident that you are spending your money effectively during this difficult time. We will work hard with you to explore options for resolving your file in the most cost effective manner, while continuing to advocate for the best possible result.  

Are We Common Law?

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

Family law in British Columbia is currently governed primarily by two pieces of legislation; the Divorce Act (Canada), which is federal legislation, and the Family Relations Act, which is provincial legislation.

Unmarried couples do not fall under the jurisdiction of the Divorce Act, and so must seek their relief under the Family Relations Act. The Family Relations Act defines spouses to include a couple who have lived in a “marriage-like relationship for a period of at least 2 years”.

Under the Family Relations Act, a common law couple who has resided together for two years can seek relief for child and spousal support, but has no recourse with respect to property. Currently, if you are leaving a common law relationship and the property is held under the name of your spouse, you must make your application for its division under the law of trust. This is complicated law that requires you to prove your entitlement in proportion to your contribution, and you must demonstrate that your contribution was to the benefit of the other party and subsequently your detriment, with no juristic reason.

If a couple has lived together for less than two years, they can only make application for support of a child under the Family Relations Act. A party does not have to have lived with the other parent to seek or pay support for a child, so long as they are the biological parent of that child. Where a person has stood in the place of a parent for a period of at least one year, that party may also be liable for support of that child.

The Government of British Columbia is changing the rules with respect to property in the new Family Law Act. The new Family Law Act also defines common law relationships as a couple that has lived together for two years, but brings them under the same property regime as married couples. This act changes the old regime of a presumption of an equal division of property for married couples, and applies that presumption only to property accrued during the course of the relationship.

The definition of common law may be different under other legislation or regulations. For example, the Canada Revenue Agency defines a common law couple as two people who reside together in a conjugal relationship for 12 continuous months, or reside together for any period of time and share a child. The Canada Pension Plan defines common law partners as two people who have resided together in a conjugal relationship for at least one year, as does the British Columbia Public Service Agency Employee Benefits program.

What is this going to cost?

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

It is rare that a lawyer will be able to give you a dependable estimate of the end cost of your family file. A survey of average costs found at this link of a contested divorce indicates that the cost can range from $6,582 to $86,644. These costs can be even higher if lawyers are involved in other issues, such as communicating between the parties over childcare issues or appealing a trial decision to the Court of Appeal. There are many factors that will change the end cost of your case, only some of which are in your control. These factors may include the complexity of the situation, the dynamics of the relationship between the parties, whether there are allegations of abuse, whether there are businesses that require detailed analysis of business records, how far apart each party’s perception of a fair result is, and whether counsel for both parties are committed to working to diffuse rather than increase conflict.

The lawyers at Paine Edmonds subscribe to a philosophy that every effort should be made to negotiate a fair resolution for the parties. It is in the client’s best interests to attempt to resolve a file with the best possible result at the lowest cost, whether by settlement offer, negotiation or mediation. Where these negotiations break down or are impossible due to the dynamics between the parties, at times it can be more cost effective in the long run to make an application to court to resolve an issue, rather than engaging in protracted negotiations with little chance at success.

Other steps you can take to keep your costs down include:

- instead of  a series of short emails or phone calls to your lawyer, save your questions for an appointment or one longer email, as each email or phone call is billed separately;

- make a checklist of items that you want to discuss with your lawyer, so that you stay focused and use your time effectively;

- leave your lawyer to handle the big-picture things, and try to handle smaller items yourself. Having your lawyer involved in passing mail, arguing over lunch choices for your child at school, or reviewing every angry text shared between you and your former spouse will increase your costs significantly;

- bring in your documentation well organized. You will need to provide documentary evidence to your lawyer, such as bank statements, tax returns, paystubbs and relevant assessments. If these documents are organized in chronological date-form and by subject area, then your lawyer will spend much less time having to go through them and organize them;

- try talking to your lawyer’s assistant before talking to your lawyer. Most firms charge a reduced rate for the assistant’s time; at Paine Edmonds we do not charge for this time. The assistants are familiar with the files and can answer many procedural questions without you having to speak with your lawyer.

Changes to Family Law in British Columbia

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

A new bill was passed on November 23, 2011 which received Royal Assent on November 24, 2011. The new Family Law Act changes much of the terminology used in Family Law and redesigns the Family Relations Act. Much of the new law is not yet in force, and the Family Relations Act is still predominantly the governing legislation in British Columbia.

The new Family Law Act will be in full force as of March 18, 2013. At that time, it will replace the Family Relations Act.

Some main features are:

- the Act sets out the “best interests of the child” as the only consideration when making determination     affecting the children;

- the concepts of “custody” and “access” are being replaced with “guardianship”, “parenting time” and “parental responsibilities”;

- the Act encourages alternatives to court for resolving family disputes: including, mediation, negotiation, use of parenting coordinators and arbitration;

- the Act attempts to define and address family violence;

- the Act sets out a series of tools and remedies to support children having access to both of their parents;

- the Act brings significant changes to how property is treated in both marriage and common law relationships;

- the Act seeks to create presumptions of parentage, including in cases of assisted reproduction (such as a donor or surrogate).

Is there a Code of Conduct for Family Law Lawyers?

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

All lawyers in British Columbia are bound to a professional code of conduct governed by the Law Society of British Columbia.

In July, 2011, the Law Society of British Columbia issued the Best Practice Guidelines for lawyers practicing in the area of family law in British Columbia. The guidelines set out are not binding on family law lawyers, but all lawyers on the family law team at Paine Edmonds LLP adhere to these guidelines. The guidelines set out are:

BEST PRACTICE GUIDELINES FOR LAWYERS PRACTICING FAMILY LAW

Lawyers involved in a family law dispute should strive to ensure it is conducted in the

following manner:

1. Lawyers should conduct themselves in a manner that is constructive, respectful and seeks to minimize conflict and should encourage their clients to do likewise.

2. Lawyers should strive to remain objective at all times, and not to over-identify with their clients or be unduly influenced by the emotions of the moment.

3. Lawyers should avoid using inflammatory language in spoken or written

communications, and should encourage their clients to do likewise.

4. Lawyers should caution their clients about the limited relevance of allegations or evidence of conduct.

5. Lawyers should avoid actions that have the sole or predominant purpose of

hindering, delaying or bullying an opposing party, and should encourage their clients to do likewise.

6. Lawyers cannot participate in, and should caution their clients against, any actions that are dishonest, misleading or undertaken for an improper purpose.

7. Lawyers should keep their clients advised of, and encourage their clients to

consider, at all stages of the dispute:

a. the risks and costs of any proposed actions or communications;

b. both short and long term consequences;

c. the consequences for any children involved; and

d. the importance of court orders or agreements.

8. Lawyers should advise their clients that their clients are in a position of trust in relation to their children, and that

a. it is important for the client to put the children’s interests before their own; and

b. failing to do so may have a significant impact on both the children’s wellbeing and the client’s case.

9. Lawyers should advise their clients of and encourage them to consider, at all stages of the dispute, all available and suitable resources for resolving the dispute, in or out of court.

Do I have to divorce?

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

No! You do not have to apply for a divorce at any time. However, in British Columbia, we have a no-fault divorce system. If either party applies for a divorce, they will be successful if they prove one of three things: you have lived separate and apart for 12 months; the opposing party has committed adultery; or they have subjected you to physical or mental cruelty that makes continuing to live together intolerable.

However, if neither party moves towards applying for an actual divorce, that is fine. All aspects of separation, including division of assets and care of the children, can be handled through the drafting of a separation agreement.. That agreement can then be rescinded by the parties if a reconciliation occurs, or a divorce can be applied for at a later date, if either party chooses. If there is no agreement between the parties about division of assets or child care arrangements, application can be made to the courts with or without a divorce, to resolve these issues. Sometimes a divorce can take several months to process, and so if you wait until you make plans to remarry before starting your divorce, you may face delays that are outside of your and your lawyer’s control.

My World is Suddenly Upside Down ... Where Do I Start?

By Michelle Guy, Associate at Paine Edmonds LLP, Vancouver Family Law Lawyer

The initial phase when a marriage or common law relationship comes to an end is overwhelming and disorienting. This is a time when the road map of your life has been crumpled up and thrown in the fire. A new roadmap needs to be built, but that process is overwhelming when managing the emotional aspect of coping with the end of your significant relationship. Whether you are the leaver or the leavee, there are huge emotional obstacles that you will have to overcome over the following number of months.

In your first meeting with your lawyer, you will talk about the relationship and how and why it ended. Your lawyer will help you identify the issues that need to be considered and will create with you an action plan for how you can move forward with creating a new life. Often, the emotional aspect will become easier when you know that someone is helping to solve the logistics of where you will live, how you will survive, how much you will have to pay, how you will preserve the assets that are meaningful or necessary to you, and how you will protect your relationship with your children. Sometimes your lawyer will recommend that you seek the help of a good counsellor, to help you find clarity in what you want for the future.

Coming to see a lawyer is much like coming to see an architect when you are building a house. You are in charge of the overall design, but the lawyer helps to create the structural foundation for the life that you want to begin to unfold. 

Welcome to the Paine Edmonds LLP Family Law Blog

In today's fast changing world, family law issues are becoming increasingly complicated.  With so much at stake, it is absolutely critical to have an experienced family law lawyer on your side to help you.
At Paine Edmonds LLP, our Family Law Group is made up of a team of specialized and experienced family law lawyers who resolve our clients' family law issues cost-effectively. Our lawyers have vast experience in all facets of family law, including divorce, custody, drafting separation agreements, and child and spousal support.
If you are facing a family law-related issue and would like to speak with one of our Family Law lawyers, please call Michelle Guy or her assistant, Rebecca Wahl, immediately to arrange for a consultation.