Fortunately for the parties involved, most divorces settle without litigation. When the financial and emotional costs are tallied, going to court is just too expensive. Not to mention the months and months that court litigation requires. If a lawyer charges $500 an hour, a five-day trial costs approximately $25,000. When you double that to account for trial preparation, trial costs really add up. Clearly, time and money spent avoiding a trial is usually time and money well spent.
Family law in Ontario is resolution-focused, starting with case conferences. These meetings can help guide the parties toward an agreement, and the process is designed to prompt a settlement. Settlement provides certainty and finality. Ongoing litigation adds risk and uncertainty. Usually when one opts for a trial, they either have too many differences to reach a settlement, or they feel the possibility for success is high. The primary reason not to go to trial is that it's just too expensive. In a cost/benefit analysis, settling without the costs and risks of court usually wins out. Resolution without trial benefits both the litigants and the justice system. A single judge can oversee 25 settlement conferences each week, while they might otherwise be hearing evidence in one divorce case.
This also explains why trials take so much longer, and how judicial resources are optimized outside of litigation. Divorce trials tend to be the purview of wealthy people with plenty of issues to fight over. For those with the means and desire to pursue litigation, the decision often comes down to time and other non-monetary costs. With court scheduling and procedural considerations, a trial in a city like Toronto can take anywhere from 18 to 36 months to complete. This means you can spend years without resolution, and those are years spent with lawyers, accountants, evaluators, and in court, rather than with your family. There is also the emotional toll of litigation - stress, scheduling constraints, and dealing with a trial’s risks over a long period. Some people handle risk and uncertainty better than others, and that’s something we discuss with our clients.
In our experience, the certainty and finality of a settlement has value, versus the potential for some as-yet unspecified success many months and many dollars from now. The accepted wisdom in commercial cases is that going to trial to gain less than $300,000 is not a good business decision. This type of equation is also worthy of consideration in a divorce action. If a trial is going to cost $100,000, to fight over $50,000, it makes much more sense to settle. Having said that, for those with the means and the time, litigation may be the best option.
If the parties are too far apart, there is a novel point of law to settle, or if one party will only be motivated by a judicial order, a trial may be the only option. While most cases don't present these circumstances, some do. And in those cases, a trial may be the only way to resolve the case. That’s why there are courts and judges.
Herschel Fogelman is the founder and principal of Fogelman Law, a family law firm in Toronto. Herschel is a Best Family Lawyer, and is listed in the Lexpert Directory. An experienced family law mediator, arbitrator, and litigator, Herschel pioneered Customized Case Management, a unique service that streamlines and customizes the processes and schedule in family law cases.