The Ontario Court of Appeal in the May 21, 2003 decision of Wylie v. Leclair did not think so. In that case, the parties lived together from 1985 to 2000 and had two children. After they separated, they agreed to a shared custody arrangement, with the children living with each parent on alternate weeks. A trial was held on the issues of support and division of property. Regarding the division of property, the trial judge found that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship. The trial judge awarded Ms. Leclair $150,000, and calculated this amount based on an equalization of net family property—a calculation that is used when married spouses separate by calculating each spouse’s assets and liabilities at the date of marriage and the date of separation.

Mr. Wylie appealed the trial judge’s decision to the Ontario Court of Appeal. The appellate court felt that the trial judge was wrong in attempting to provide an equalization of net family property for a common law couple.

When married spouses separate, it is necessary to equalize the parties’ net family property. However, this is not the law in common law relationships. The appellate court felt that the trial judge was attempting to adjust the law to provide for an equalization of net family property for common law spouses while there is no legal authority or presumption to do so.

The appellate court did consider the fact that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship, but also considered that Ms. Leclair lived rent-free for the duration of their 15-year relationship.

The appellate court reduced Ms. Leclair’s award to $70,000.

Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. An arbitration is a process similar to litigation. The arbitrator hears the evidence of each spouse, and the arguments made by each spouse’s lawyer, and then delivers a written decision that is as enforceable as a court order. An arbitration is a formal process conducted under the Arbitration Act which requires the arbitrator to comply with certain procedures. As opposed to the long wait to get a trial date in court, spouses who agree to submit to arbitration jointly select an arbitrator, sign an arbitration agreement and schedule a date for the hearing. Arbitration and the decision rendered by arbitrator are usually kept confidential. The cost of arbitration is either shared by the spouses or, if they wish to give the arbitrator the power to award costs, the arbitrator may order one spouse to pay the other spouse’s costs of the arbitration.

Do-it-yourself kits are available. However, simply filling out forms is not the equivalent of obtaining critical legal advice and professional representation. The court system involves very serious and complex issues that will affect your life and the lives of your children. A person who fills in a blank court form is under the false impression that his or her legal rights and obligations will be properly determined by a judge. The prejudice to your case, the probable delays and the unnecessary stress is far more expensive than the cost of proper legal advice and representation.

Many clients do not understand that the information they put in court forms may be damaging to their case and can never be removed from the court record. Many clients do not understand what legal rights are available to them and what strategies they should employ to advance their legal interests. Many clients do not understand how to present their case, orally and in writing, so that they will achieve their objectives in the fastest, simplest and least costly method.

Divorce lawyers are educated, trained and licensed to represent spouses in court. Divorce lawyers are familiar with recent changes in the law and are familiar with the court process. The court process is complex. It is based on rules of procedure, such as the Rules of Civil Procedure and the Family Law Rules. The relief sought is based on legislation such as the Family Law Act and the Children’s Law Reform Act. A Divorce lawyer is professionally trained to prepare your court documents and make oral arguments to a judge who will decide the outcome. It is critical to obtain legal advice and representation by a divorce lawyer when separating.