Meditate, mediate. Just don't litigate

Dave McGinn
Financial Post
Published: Saturday, October 07, 2006

Tie and Leanne Domi before their recent split. The more bitter the battle, say divorce experts, the higher the bills.

Tie Domi took plenty of hits during his career as an NHL enforcer, but the bill for his divorce may come as his biggest blow of all. Although details of the cost of Mr. Domi's split from his wife have not been made public, experts say these kinds of divorce battles -- Leanne Domi's lawyers have called hers "very acrimonious" -- can send costs skyrocketing.

Just ask David DeBora. Last year, a Toronto judge ordered the chairman of Lifestyles, a health and nutrition company, to pay his ex-wife $2.25-million to cover legal bills for their divorce. The couple were described as being in a "death grip" with one another. The judge also ordered Mr. DeBora to pay his ex-wife's divorce team a $150,000 bonus.

"We tell people all the time, you can either settle for X amount or it's going to cost you twice as much if you go to court, because the legal fees are going to be twice as much. So, you might as well settle," says Karen Ballantyne, an associate at Rayson and Associates, a Toronto firm specializing in family law. "Sometimes they won't listen because it's the principle of the thing," she adds.

The cost of a divorce can range from $1,000 in uncontested cases, to much, much more: "If they're going to litigate, even by the time you actually get to trial, even if it's people with average or modest incomes, you can spend over $50,000," says Ms. Ballantyne.

There are, however, a number of alternatives to expensive court battles, from divorce kits to the latest civilized solution -- collaborative mediation.

Divorce kits geared to particular provincial laws are available in all Canadian jurisdictions, and can be downloaded from the Internet. They explain in detail what to do, and usually come with the necessary forms.

Lawyers, of course, say it's best to avoid these kits except in rare cases: "They may be suitable for the most simple of cases, the 0.05% of cases that involve no children, no money, no property, no income, no issues," says Martha McCarthy, a partner with Epstein Cole LLP, a family law firm in Toronto. She adds that even then, it's best to seek professional advice.

"I would never recommend that somebody use one," she says. "Unless you talk to a lawyer, you don't know what your rights are."

Couples hoping to save the costs and time of a court battle, but still wanting legal guidance, can opt for mediation.

"It's a lot like going to court except it's a lot less formal, a lot quicker and it usually costs quite a bit less," says Ms. Ballantyne. The mediator is typically a senior practitioner of family law. But if a couple can't carve out an agreement, they'll likely wind up in court.

Couples who loathe each other are likely to end up with big legal bills. Says Yolanda Van Wachem, an associate at the Edmonton offices of McLellan Ross LLP: "When you feel betrayed, you want revenge. And the system allows you to do that."

Firing off angry letters takes time, as does filing motions, interim applications and the like. With lawyers charging from $250 to $650 per hour, the costs quickly add up even before a couple gets to court.

That's why many Canadians are choosing to take the collaborative-practice route, which advocates say is a more amicable and much cheaper way of getting a divorce.

Collaborative-practice divorce is akin to mediation but differs in that lawyers are with their clients during negotiations and, the key difference, the spouses and their lawyers pledge in writing not to go to court.

"It is much, much less expensive than a court proceeding," says Victoria Smith, a Toronto collaborative-practice lawyer. "We don't waste time airing past grievances. We don't argue about who's right and wrong. Most collaborative cases can be settled for the cost of one or two court appearances," she adds.

Catherine Lapointe, who had a collaborative-practice divorce two years ago, says that while the chance to work out their divorce on a goodwill basis was the main reason she and her ex-husband chose this route, the lower cost was a factor.

"You don't want to pay more than you need to," says Ms. Lapointe, a Toronto IT manager.

While couples intent on fighting can wait up to two years before seeing the inside of a courtroom, Ms. Lapointe's divorce was finalized in four months.

However, critics say that by pledging not to go to court, collaborative practice can end up being expensive: "Because they've signed a collaborative law agreement committing not to go to court, if one of them does decide to go to court, both parties have to get new lawyers," says Ms. Ballantyne. "By the time they're up to speed again, that can cost a lot more."

Experts say that paying for a divorce lawyer is usually the wisest plan. Family law can be too Byzantine for individuals to navigate: "Choose your cliche," says Ms. McCarthy. "I don't try to fix my carburetor. I don't take out my own appendix. I don't do brain surgery on myself. It's all too complicated for me to ever recommend to anybody that they be self-represented."

SPLITSVILLE STATS:

Is marriage working in Canada? A study released this summer by Statistics Canada, "Till death do us part? The risk of first and second marriage dissolution," offers some illuminating insights. Here are some key findings.

  • Couples who were married in the 1980s and 1990s are two-thirds more likely to dissolve their marriages than couples who were married at an earlier date.
  • People with less than a high school education at the time of their first marriage are 38% more likely to divorce than high school graduates.
  • Living common-law prior to marriage may not be the road to marital bliss. The risk of divorce is 50% higher among couples who lived together before their wedding than those who did not.
  • People who wait until their mid-30s to marry are 43% less likely to divorce than people who get married between the ages of 25 and 29.
  • The risk of people with children undergoing a divorce is 73% lower than for married partners without children.
  • People who attend religious services have between a 10% and 31% lower predicted risk of marital dissolution than those who don't attend at all.
  • One in five Canadians who have remarried left their second spouse within an average of 7.6 years.
  • People who don't believe marriage is important for them to be happy have a predicted risk of both first and subsequent marriage failure -- 170% to 330% higher than people who feel it is very important.
© National Post 2006