MORE ON SETTLEMENT
Offer to Settle
As the term says, offers to settle (also known as offers of settlement) are proposals from one side to settle some or all of the issues in contention between divorcing spouses. If it is accepted by the other party, an offer to settle is valid and binding.
Settlement usually entails some sort of compromise, which means neither party gets everything he or she is looking for. For example, you may want spousal support of $10,000 a month but would be willing to settle for $8,000 if it were for a period of 10 years and you can retain possession of a prized collection of paintings. Almost anything to do with family assets, child or spousal support, or the custody and guardianship of children can be spelled out in an offer to settle.
In some provinces like B.C., these offers to settle are typically made in lawyers’ letters marked “Without Prejudice.” This means you will not be held to what you have proposed should your case go to trial. You may have offered to settle for $8,000 in spousal support, but at trial you can still go for $10,000, if the offer is “without prejudice,” because that phrase protects the offer from being disclosed at trial. “Without prejudice” letters allow people to discuss settlement proposals without worrying that their proposals will be held against them later.
With a case heading toward trial, it is always a good strategy to make a reasonable offer to settle. If it is not accepted and the judge at trial later orders the same or similar terms to your offer, then your spouse may be ordered to pay all the costs from the date of the offer to the end of the trial. But be aware, if you make an offer to settle “without prejudice,” and plan to use it to argue costs later on, make sure the letter says so, or it will be inadmissible at trial.
Settlement conferences are private meetings with a judge and are designed to encourage open dialogue between the two sides in an effort to get them to reach an agreement and avoid going to trial. If no agreement is reached, it is common for the judge to give an opinion on how he would decide the case should it go to trial. This can often persuade resistant lawyers or clients to settle. A specific judge can be requested for the settlement conference and, unless the two sides agree otherwise, he or she will not continue on to be the judge at trial.
Minutes of Settlement
Minutes of Settlement is a document that sets out those issues agreed upon by the two parties. Once signed, Minutes of Settlement are binding and enforceable. In some divorces it is a method of settling the case; in others it may serve as an interim step to resolve some of the problems between the two parties. The settlement is often incorporated into an order of the court made by consent.
STARTING YOUR CONTESTED DIVORCE
Beginning an Action
Often when couples first separate, there is a period when their lawyers exchange letters as they seek to find a way to resolve the problems between them as amicably as possible. Many cases avoid the courts altogether, reaching settlements without the need for expensive court orders and legal pleadings. In Canada, less than one percent of divorces actually go to trial.
If your divorce is contested, it best if you are the one to start the action and file for divorce. That makes you the claimant and your spouse the respondent. The claimant sets the tone for the process that follows. If you come out swinging, spoiling for a fight, the respondent will likely counter in kind. If you open the proceedings in a more reasonable and conciliatory manner, the prospect of a fair and amicable settlement may not be beyond the imagination. And should your case go to trial, as the claimant you have a tactical advantage. You go first at trial, which can have a psychological benefit since there is a natural tendency for people to accept and hold as true what they hear first. The claimant also has the final right of reply – the last word, and we tend to remember best what we heard last. Also, if you happen to be living in a different community to your spouse, as the claimant you get to choose the venue for the trial.
Notice of Family Claim
If your divorce is contested, either you or your spouse will start the action by filing a Notice of Family Claim (Form F3) with the court. Lawyers will have the necessary legal form on hand to do this. This document gives the court a concise summary of who the divorcing parties are, where they live, their children if they have any, and what the filing spouse wants.
Once the statement of claim is issued by the court it becomes official, and a copy must be served on the opposing spouse, who is required to reply to the claim with a formal response or even a Counterclaim, which puts his or her side of the dispute.
If you are the one served a Statement of Claim, it can be a shock. There in black and white legal language is what your spouse wants out of the divorce. Don’t panic. Don’t rush out and hire the first lawyer you meet. Take your time, review the alternatives.
Claimants often shoot for the moon in their statements of claim. If you are the one beginning the action, my advice is not to take that approach. Why antagonize your spouse with unreasonable claims, ramping up the anger and emotion, when you may well be willing to settle for something more equitable? The adversarial process seems to be set up to create a fight rather than to find reasonable middle ground.
About your Examination for Discovery
An examination for discovery is a pre-trial process at which lawyers for each side questions the other party under oath about the matters involved in the divorce. It is an opportunity to ask questions of the other spouse and require them to produce documents that are relevant to the divorce proceedings.
Examinations for discovery usually take place in a small room with the two lawyers present. A court reporter takes down all the questions and answers and records documents as exhibits for later use in court. Your spouse can be also be present, although this is unusual.
The purpose of discovery is to find out the other side’s version of events and question them about it. The lawyer probes and questions, looking for weaknesses, assessing the strengths of the case. He or she will try and obtain admissions from you that can later be used against you at trial. When you are being questioned, it is important to be truthful, not be evasive, and to answer only what you are asked, nothing more. The purpose of this questioning is to help your spouse’s case, not yours.
During discovery, you should listen to each question carefully, and pause before you give your answer. If you need a moment to think, buy some time by asking the lawyer to repeat the question. If you don’t understand the question, ask for it to be repeated or rephrased until you do understand, then answer as succinctly as you can. If you make a mistake, correct it right away so that it is on record. Your testimony must be as accurate as possible, because if the case goes to trial and your answers change, your credibility will suffer.
The questioning can be very intimidating, stressful, and frustrating. Don’t be surprised if your ex’s lawyer tries to trip you up. Stay calm. Don’t lose your temper. Don’t feel like you’re all alone. If you’re asked an improper question, your lawyer may well object and instruct you not to answer.
Be prepared. It’s like you’re a rookie in a baseball game and you’re warming up in the batting cage. You need to be calm and well-practiced to hit those fastballs. I spent the weekend before my discovery writing out and answering a list of likely questions so that I was ready for just about anything. Going through that exercise was invaluable: the advance preparation definitely reduced my stress level.
Judicial Case Conference
A Judicial Case Conference or JCC is a private, informal meeting of the spouses and their lawyers with a judge or master of the court. Its primary purpose is to identify which issues there are agreement on and which are in dispute, and discuss ways to resolve these issues without further litigation or trial through mediation or through a settlement conference. If the parties are deadlocked and destined to go to court, the JCC also provides an early opportunity to plan the trial.
A JCC is more informal than a court hearing. It usually happens around a table in a courthouse meeting room. The judge will not be dressed in his or her robes, and he or she will want to hear directly from you even if your lawyer is present.
The judge or master can make orders about your case you agree to such as interim support, and others about process, such as when court hearings or exchanges of information will happen.
Either party can apply for a JCC at any time.
Designed to ascertain a person’s employability in today’s workforce, a vocational assessment includes a series of interviews and educational and aptitude tests conducted by an expert in the field. In divorce proceedings, it is often used to impute the income of a spouse who is not currently working, or who may be working in a low-paying job that is below their capabilities.
If the vocational assessment shows that a spouse is employable at some salary, say $50,000, that figure can be used in calculations of spousal support, thereby potentially reducing the amount the supporting spouse will have to pay.
According to a 1999 study done in Colorado that surveyed 90 judges about domestic law issues, reports from vocational experts were not at all popular with judges.
ORDERS AND NOTICES
Notice to Admit
A Notice to Admit is a device designed to cut down on the time and expense of litigation by itemizing certain facts that both parties can admit to as true, and documents they can admit to as authentic. Those admitted facts and documents are then no longer at issue in the case and do not have to be proved in court.
Frequently produced before a trial, a Notice to Admit comprises a list of numbered paragraphs that records each fact or catalogues each document. The other party can respond to each paragraph as admitted or denied. If it is denied, a reason is usually given. According to the rules of court, if you do not reply to a notice to admit within 14 days, you are deemed to have admitted the facts it contains. And once an admission is made (or deemed to be made), it is very difficult to change it.
Although Notices to Admit are designed to save time in the court room, they are not without their limitations. You can spend an enormous amount of time, energy and money putting together a very detailed Notice to Admit. The facts may be no-brainers but counsel on the other side doesn’t have to play ball and doesn’t have to admit to the facts.
It is common in divorce cases for interim or temporary orders to be granted on such things as child custody, support payments and the disposition of the matrimonial home to tide people over until a final settlement, or trial judgment, settles the matter finally. If spouses cannot agree on these issues, you can apply for interim orders to the Supreme Court or Provincial Court. If spouses are in agreement, you can get a consent order, which means you may not even have to appear in court.
Child support is fairly straight forward, calculated following the Federal Child Support Guidelines. See the Child Support tab for more information.
Spousal support is less easy to calculate especially for couples where one or both spouses have incomes above $350,000. See the Spousal Support tab for more information.
A bird’s nest arrangement is where the children stay put in the home and the two parents alternate living with them. Bird’s nest regimes are usually temporary arrangements for families with joint custody situations that need to share one home. They are less disruptive for children who do not have to transition between parents who are living in separate places.
Typically the father will spend a week – or another agreed-upon period – in the home looking after the children as the custodial parent, while his spouse stays in an apartment, a hotel or other accommodation. At the end of the period the roles reverse: the mother joins the children in the home and the father must move out to other accommodation until it is his turn again.
To impute means to attribute something to someone, in this case, an income.
In Canada, family court judges often “impute” a spouse’s income for the purposes of calculating the amount of child or spousal support to be paid by one spouse to the other. This means the judge attributes a certain level of income to a person, even though it may not be what they earn.
Usually this occurs when the person in question is either not earning income, or is earning income at a level deemed by the judge to be below their potential ability.
In the former case, a spouse who has spent a number of years in a marriage with no income may be considered by the judge to have the potential to return to the workforce with a capacity to earn income at a specific level. Typically, the judge will look at what the spouse was historically capable of earning, the availability of jobs in their field, the industry standard for salaries in order to set an income level. The age, education, health, skills and standard of living are other factors given consideration. That imputed income is then used in the support calculations.
In the latter case, a spouse who is intentionally unemployed or underemployed, for example if they stop work to go back to school, or take a lower-paying job, the judge may require them to continue to pay support as if they were still earning at a higher level.