How Your Lawyer Charges You

This seemed like an appropriate follow up post to my article about the cuts to legal aid.

By the Hour

Family law lawyers bill for their services by the hour. Other lawyers, like the lawyers who handle personal injury and wrongful dismissal claims, bill on a contingency basis, meaning that they work for a percentage of the settlement; family law lawyers don't do this, we bill by the time spent working on your file.

"Working on your file" encompasses a lot of different activities, as broad as the phrase suggests. In addition to the obvious things, like time spent in court or attending mediation, family law lawyers bill for reading letters and writing them, making telephone calls and taking them, researching legal problems, drafting court documents, consulting experts and giving instructions to them, and so on.

The amount of a lawyer's rate is usually, but not always, related to things like the length of time the lawyer has been practicing and the hourly rate of the other members of the lawyer's firm. When you're hiring a lawyer, make sure you get his or her hourly rate and the rates of any other members of the firm who might wind up working on your file.

Retainers

Most family law lawyers work on a retainer basis. "Retainer" has a lot of different meanings. In this context, it means an amount of money the lawyer asks you to pay up front. As time goes by, the lawyer will bill you for his or her services and pay the bill by withdrawing money from your retainer. When, after a number of bills, the retainer is empty, the lawyer will usually ask you for another retainer payment. Essentially, your retainer is security for the lawyer's future fees.

The size of the retainer the lawyer asks for will depend on a lot of things, including the perceived complexity of the file, urgency, the amount of work the lawyer thinks he or she will have to do in short order, and the number of court appearances the lawyer anticipates in the near future. When a trial is looming, the lawyer will ask for an extra retainer roughly equal to the working hours the lawyer expects the trial to consume. Unless the lawyer says so, the amount of the retainer requested is not a flat rate, quote or estimate of the total cost of resolving your file.

The retainer you give to your lawyer is your money. If your file concludes or your and your lawyer part ways before your retainer is exhausted, you will get the balance of your retainer back.

Flat Rates

Sometimes a family law lawyer will agree to work for a fixed fee. There aren't very many legal activities in family law that are suited for flat rates, but those that leap to mind are: simple divorces, separation agreements, marriage and cohabitation agreements, relative adoptions, and giving independent legal advice about an agreement.

Initial Consultations

Unless the lawyer advertises that your first meeting with him or her is free, expect to be charged for the consultation at the lawyer's usual hourly rate. Relatively few lawyers, and even fewer family law lawyers, offer free initial consultations. Never assume that your first meeting is free.

Remember that family law lawyers bill for for their time. You would expect to pay something when the mechanic puts your car up on the hoist or your plumber diagnoses a problem with your washing machine; lawyers are doing pretty much the same thing when you meet with them for legal advice, and you'll get a bill for their services just like your would from your mechanic or your plumber. If you have any questions about whether there will be a charge for the lawyer's time and advice, ask up front.

Cuts to Legal Aid

On 1 April 2010 (sorry about the delay), a number of important changes were made to the services offered by the Legal Services Society, the provincial agency which delivers legal aid in British Columbia. LSS' budget for legal services is largely funded by the provincial government.

Terminated Services

LSS no longer offers LawLINE, a service which gave free summary legal advice and legal information to persons with low incomes by telephone. The LawLINE Journal blog stopped being updated on 22 March 2010.

The LawLINK website (formerly the Electronic Law Library) has been taken off-line and now redirects to the ClickLaw website, an excellent legal information resource operated by Courthouse Libraries BC with core funding from the Law Foundation.

Updated Income Criteria

LSS provides legal representation to persons of limited means. The household income caps, above which LSS will not provide representation, has been modestly increased by $10 to $85. The current income caps are :

1. For a family of one person, you cannot earn more that $1,420 per month net.
2. For a family of two persons, $1,980 net or less.
3. For a family of three persons, $2,540 net or less.
4. For a family of four persons, $3,100 net or less.
5. For a family of five persons, $3,660 net or less.
6. For a family of six persons, $4,230 net or less.
7. For a family of seven or more persons, $4,800 net or less.

To read other posts about LSS and past funding cuts, click on the "legal aid" label below.

New Amendments for the New Rules

An Order in Council came into effect on 5 May 2010 amending the published version of the new Supreme Court Family Rules. The new rules, as amended, will be in force on 1 July 2010. Many of the amendments corrected minor errors and inconsistencies in the new rules. The significant changes are these:

1. Lists of Documents are now amended to add new documents. The old way of doing things had new documents being listed in a Supplemental List of Documents, a Second Supplemental List of Documents and so forth. With this amendment there will be only one document, an Amended List of Documents, which will be updated when new documents come to light.
   
2. The Applicant's reply materials in chambers proceedings, including the application record and application record index, must now be served and filed by 4:00pm on the day which is one full day before the day set for the hearing of the application. Previously, these materials need to be served and filed by noon on the day before the hearing. Applicants now have much less time to prepare these materials.
3. The Notice of Application form now requires the Applicant to specify the date and time of the hearing of the application.
   

The Order in Council is not yet posted to the website of the Queen's Printer. I will add that link when it becomes publicly available. I have previously discussed the new rules here, here and here, and in much more detail on my website in the New Rules 101 chapter.

Update

The Order in Council amending the published form of the new rules is now available from the Attorney General's website (PDF). The changes to the family law rules are in Schedule B, in the second half of the document.

Family Relations Act Review Update

Readers will recall the review of the Family Relations Act begun by the Attorney General's office in 2007. As mentioned in a post last year, work on the project has continued behind the scenes following the end of the AG's public consultations.

I have learned that the AG is due to release a white paper in June summarizing amendments that will be made to the Family Relations Act as well as options for amendments which may be made to the act. Will there be another opportunity for public comment before the bill is tabled in the legislature?

To read other posts about the FRA review , click on the "Family Relations Act" label below.

Spousal Support Calculators

Readers of my website will recall my frustrated attempts to create on-line calculators to handle the math required by the Spousal Support Advisory Guidelines. Despite hours and hours of effort, I simply couldn't coax JavaScript to generate exactly correct results; the math required by the "with child support" formulas is just too complex and defeated me. As a result, I decided to take my "with child support" calculator off-line rather than have people going to court with inaccurate information.

This has not proven a problem for Bryan Delaney, an Ottawa family law lawyer, whose firm's website features calculators for both the "without child support" formula and the basic "with child support" formulas at http://www.delaneys.ca/calculators_main.html. Congratulations are due to Mr. Delaney, although, with respect, I am not sure how accurate the results of his "with child support" calculator will be with the limited information it seems to require.

The surviving calculators available on my website are:

1. child support, under the old and new child support tables for British Columbia;
   
2. children's special expenses; and,
   
3. the "without child support" spousal support formula.

My technical overview of calculations under the Spousal Support Advisory Guidelines is available at the website of the Department of Justice at http://canada.justice.gc.ca/eng/pi/fcy-fea/spo-epo/calc/index.html.

Update: 25 May 2011

DivorceMate, the company that sells spousal support software to lawyers, has published a free, public spousal support calculator. Read my post on the calculator for more information, or click on the "advisory guidelines" label below.

Remarrying After a Void Marriage

Not every marriage needs to end in death or divorce. Some marriages are voidable and others are void from the get go. How do you remarry if you're in a marriage which is void or might be voidable?

A marriage may be voidable if:

1. the marriage was a sham;
2. a male spouse was under the age of fourteen or a female spouse was under the age of twelve at the time of the marriage;
3. one or both spouses didn't consent to the marriage, or agreed to the marriage as a result of fraud or misrepresentation;
   
4. a male spouse was impotent or a female spouse was sterile at the time of the marriage; or,
   
5. the marriage cannot be consummated as a result of a spouse's medical or mental condition.
   

If a party to a voidable marriage wants to remarry, a judge must either declare the marriage to be void, annulling the marriage, or make a divorce order. With the court order in hand, go to your local branch of the Vital Statistics Agency and get your marriage licence!

A marriage may be void if:

1. one or both spouses were under the age of seven at the time of the marriage;
2. the spouses are within the prohibited degrees of consanguinity set out in the federal Marriage (Prohibited Degrees) Act;
3. one or both spouses didn't have the mental capacity to marry at the time of the marriage; or,
4. one or both spouses were married at the time of the marriage.
   

Marriages which are void are void ab initio, from the very beginning, as if they were never celebrated. As a result, you don't need either an annulment or a divorce; your marriage never existed in the first place! You can proudly declare yourself to be unmarried when applying for your marriage licence.

If you run into a situation where you need proof that your marriage was void, the only solution I can think of would be to commence a Supreme Court petition proceeding asking for a judicial declaration that your marriage is void.

New Resources for the New Rules: Update

Additional links and documents for download have been posted in New Rules 101 page of my website. The new papers are:

• Commencing Proceedings: Discovery and Disclosure and
• Desk Orders: Process and Procedure