Avoid legal system When possible

Dave Brown
The Ottawa Citizen

Sunday, April 11, 2004

A worried grandmother remembered opinions I wrote over the years about the dangers, if not downright foolishness, of trying to resolve differences through litigation, and asked this week if I would talk to her son.
Why not? The legal industry never challenged those opinions. I told her to give him my phone number. We talked on Wednesday.
The overview: Wife decided she wanted out of the relationship and left the home, taking their only child with her. Many months passed and it became apparent there would be no reconciliation. She entered another relationship. So did he. He is still living in the home the couple bought together.
The child's mother hired a lawyer to settle the questions of custody, support, and division of assets. The fight was on. Father hired a lawyer who recommended mediation, but that was impossible because she, claiming she was acting on her lawyer's advice, would no longer talk to her soon-to-be ex. The advice from his lawyer was that he would have to fight back in court or risk an unfair settlement. He was prepared to put up a $3,000 advance to get ready for court.
At that point his mother asked him to pause, think, and talk to somebody.
I had questions. How much did she want for her share of the home? Twenty-five thousand. Was that a rough assessment of half the value? Yes.
Did he accept his responsibility to support his child? Yes, but he resisted sending money to a home where some of it might benefit the new man in his wife's life.
Was there a custody issue? Yes. He wanted shared custody and feared if mother won sole custody, he could lose contact with his child.
He was ready to fight. But what would anybody win?
The equity in the home, $50,000, could easily be eaten up in legal fees because the system doesn't have a door that locks. It allows appeals until the money runs out.
His other choice would be to think of his child. If he fought, the $50,000 equity from the marriage would wind up in the bank accounts of lawyers. If he didn't fight, it would still be available to help the child. He simply had to accept that he had no right to even think about how his former wife handled her share of that money.
On the issue of access, this is a bad time to make such decisions. Anger is normal when love dies. Mother doesn't want her ex in her face every other day picking up or dropping off the child. So she wants to limit access. As time heals, both parents will enjoy the fact the child has two homes. Parenting is a tough job and they will be able to provide respite for each other.
On the custody issue, he has no concerns about the mother's ability to parent and it's fear of losing contact that makes him think he should enter a court war, using money as ammunition.
If he fights, there's a child stuck in the middle. If he doesn't fight, there is no middle.
He seemed a reasonable sort and said he would think about it. Next day grandmother called to thank me. She had a question: Why didn't his lawyer paint this picture?
As a society, we are slowly beginning to realize how our justice system has morphed into a legal industry nobody can afford. While there are movements calling for a turn to mediation, there are movements calling for more judges and more courtrooms.
Even the Ottawa Citizen is feeling the shock of hitting that learning curve as it challenges an RCMP raid on the home and office of one of its reporters.
The way I see it: The whole legal world is out of control. Costs are high because lawyers operate out of large firms that compete with each other to have bigger and fancier offices in bigger towers. That drives up the cost. If the lawyers don't compete, they won't get the big corporate clients. They're setting a financial pace average citizens can't keep up with.
Our legal industry isn't just out of control, it's broken beyond repair. We need something new. Meanwhile, the best advice is, whenever possible, to stay away from it.
© The Ottawa Citizen 2004