Diaries
Diary 2: Chapter Four
An open and shut and open and open divorce
You can read part three of the diary here
When my wasband moved into a friend’s basement suite on July 1, three months after we agreed to divorce. I no longer believed my naïve initial assumption that it would take us about three weeks to sort out a separation agreement. By then, he and I had already agreed to a mediation-arbitration process. My first lawyer — before she fired me — had suggested this would be a good process for us. She suggested we engage a mediator/arbitrator, who was also a family lawyer. My wasband and his lawyer were on the same page. My 2nd lawyer, hired that summer, opposing counsel booked a mediator/arbitrator she had known for a long time.
As I understood the process going in, we would begin by laying out all our assets, liabilities, and cashflow. Guided by the expertise of the mediator, who would also help us overcome any disagreements, we would then divide everything. I understood that our lawyers would be present to assist in the process. We booked three sessions, which I thought was more than enough time. According to our agreement, if we failed to reach an agreement in mediation, we would instead begin arbitration, with the same arbitrator.
The new lawyer I found came recommended by a lawyer friend of a friend. I quickly signed on with this new lawyer without checking any references, still convinced that my divorce was simple enough for anyone with a law degree to contend with. I trusted my lawyer and I trusted our mediator. I even trusted my wasband’s lawyer would behave ethically and within the confines of the law. I trusted that they all knew what they were doing, and why wouldn’t I? To my mind, our file was not particularly complicated. My wasband and I did each have a company, and my income had fluctuated over time, but I couldn’t imagine there was anything about our file that experienced professionals hadn’t previously handled. Other than custody matters,isn’t divorce all about financially disentangling couples? Surely, they’d seen all this many times before.
My wasband, I should have realized, was stoked for a fight, and his lawyer was adding fuel to the fire. In 2015, my husband had a process server attempt to serve me divorce papers. When my assistant informed me of this, I emailed him to suggest the fellow set up a meeting so he could stop paying the process server to track me down between meetings. My lawyer later told that since we had already agreed to mediation-arbitration, having me served was pointless and must have cost my wasband a fortune. I imagine he thought being served would humiliate me. In fact, the saga made me realize how far gone he was—the man I knew would not have wasted money just to satisfy his own vindictiveness. A lawyer had told me that people hire his lawyer to make them feel better about themselves – this appeared to be the case with my wasband.
On December 1, 2015, mediation began. I attended with my lawyer, and wasband attended with his lawyer. The arbitrator’s conference room contained no technology or smartboard system. He stood at the front of the room writing numbers on a flip chart. He had us call out our assets and our liabilities, and he wrote them down with a marker. As he completed each page, he ripped it off the giant pad and taped it to the wall. Finally, he took out a calculator and stood there punching in numbers. It was painfully inefficient and laughable to anyone who had ever used a computer.
Given his $600 an hour fee, this became an expensive process.
The next day, we reconvened. Wasband’s lawyer put forward a wildly absurd demand on his behalf. Apparently, she had convinced him that he should walk away with the vast majority of our assets and incomes. Blinded as he was by his need to regain power over me, he wanted to see me crawl out of the room, across glass, happy to keep the clothes on my back. His lawyer’s argument was that, according to my resume, I should be making a fortune, and that I was earning less than that due only to laziness. Furthermore, my wasband claimed that gifts to the two of us were intended only for him. In fact, he was about to spend a lot of money learning that while his lawyer’s ridiculous proposal may have made him feel good for a time, it wouldn’t be so easy to make out like a bandit. Of course, we got no closer to a resolution than we had the day before. We were scheduled to meet for a third time on March 15. I told my lawyer I would spend one more day on this; so far we had gotten nowhere.
During the interim, offers went back and forth, but we didn’t even come close to a settlement. According to my wasband’s lawyer, I was entitled to much less than half, because I could and should be earning more. I was running my own company and sitting on multiple boards, but her contention was that I would be making millions if only I weren’t so lazy. In fact, she kept sending me job postings, and I could see from the email threads that my wasband had his staff researching potential employment opportunities for me on company time. When I emailed him to ask if he wanted me to close my company and work elsewhere or keep working on the deals my company had, he didn’t respond.
Meanwhile, his behaviour became more unhinged, partly, I was sure, at his lawyer’s behest. At that point we were sharing custody of our dog, (more about that hoopla later), exchanging him every two weeks. When my wasband showed up at my door, he began asking me pointed questions. As I answered, I noticed he had one hand behind his back. In the middle of my sentence, his arm thrust forward, and I saw that he was taking a video with his phone. What he and his lawyer thought they might catch me saying, I can only imagine. I carried on, asking him why he’d asked our daughter to meet his new girlfriend so soon after our daughter learned of our separation. He back up and skittered down the driveway. His videoing of me became a regular bizarre feature of our one-on-one interactions.
Finally, mid-February came around, and the final mediation session approached. My lawyer sent me an offer she proposed I mark up to give to my wasband and his lawyer, but when I sent it back to her, I learned that she was leaving for a three-week vacation. She told me she’d look at my notes when she returned — the day before the mediation. I noted she couldn’t rightly send an offer only one day before the mediation, but she refused to entertain the thought of providing an offer any earlier. I have been negotiating transactions for more than three decades and believe it’s fair and efficient to give people time to consider an offer. So, I sent my marked up offer to my wasband and his lawyer for their consideration, with the explanation as to why it was coming from me and not my lawyer.
My lawyer booked a meeting for the day she returned, presumably to prepare for the imminent mediation session. I requested she send me an agenda by the day prior to our meeting. I emailed her and she responded the next morning to suggest she would meet me at mediation if I didn’t think the meeting with her would be productive. How could I know if it would be productive? I hadn’t been informed about what she wanted to discuss, what I should bring, or what I should think about in advance of the meeting. I assumed she wasn’t prepared and hadn’t considered any of these things herself, so suggested I go to mediation and represent myself, and I asked her if she thought she’d be prepared for the next stage of the process. She then fired me. “I can’t meet your expectations,” she informed me. Another lawyer down. Incidentally, when I reported her conduct to the Law Society, they found nothing wrong with her professional conduct. Admittedly, I thought the standard would be higher – when I’m dealing with corporate and securities lawyers, they’re comfortable with agendas, preparedness and deliverables.
I went into the final mediation session without a lawyer, and, again, we got nowhere. The arbitrator concluded the day by noting that we didn’t seem to be making progress so he’d move to arbitration. It was clearly a dance that had been done before – and why had I expected differently? I had signed an agreement that said we would automatically start another billable process (arbitration) if mediation failed.
I should know better.
When my wasband and I agreed to mediation-arbitration, we agreed to a binding process; once the process began, we had to see it through to the end, with no ability to withdraw. If the mediation did not yield results, we had to continue into arbitration. Looking back, it seems clear to me that professionals involved in such an agreement might have little motivation to strive for an efficient, effective process.
We were locked into the mediation-arbitration, so of course, they wanted to continue into arbitration. Once this occurred to me, I realized that the arbitrator’s contract was the dumbest thing I ever signed. But I expected him and the lawyers to behave like the legal professionals I’d dealt with in commercial arbitration.
At one point, I had a drink with a friend – a senior lawyer and board director that had been divorced in Alberta. I told her about my divorce experience to that point and asked why the apparent difference between family lawyers and the corporate lawyers. Without hesitating, she said “you’re not getting two things – one is that the family lawyers go to lots of courses together and care more about their relationship with each other than ardently representing their clients; the other is that they only expect to see you once – the corporate lawyers are trying to impress you by being efficient and effective so you’ll hire them again.”
It was an eye opener.
Of course, a mediator or arbitrator needs to know the law, but they don’t need to be a family lawyer themselves. I cannot recommend anyone sign a mediation-arbitration agreement. To me, there is an implicit conflict of interest in such an arrangement. I would have loved to go into mediation with no lawyers present at all. My advice is to move forward with people who know numbers, and with people who know people. In other words, more accountants and more psychologists in the process, and as few lawyers as possible in the early going. Of course, each divorcing party eventually needs a lawyer to process the agreement. Lawyers are good at dealing with the law. But early in a divorce, couples need experts who can divide up assets and liabilities, experts to help deal with emotional upheaval, and experts to help deal with custody issues and the wellbeing of the children involved. A family lawyer isn’t necessarily trained in any of those areas.
But I hadn’t learned this lesson yet. For the arbitration, I hired a third family lawyer. Arbitration, in contrast with mediation, resembles a court hearing. The litigants provide their disclosure, and then undergo questioning by each other’s lawyers on the issues at hand. In the arbitration hearing, the arbitrator, like a judge, listens to all the evidence and then issues a ruling, which is binding. In a standard arbitration agreement, You can appeal errors of law, but not errors in findings of fact, which, as I learned the hard way, can lead to disaster.
I came out of our questioning with 38 undertakings to provide additional information. My wasband’s lawyer had me rummaging around through boxes, trying to find all manner of old and irrelevant documentation. For instance, she wanted a list of my jewelry, and she wanted a list of every trip I’d taken in the last five years (yes, when I was living with my wasband who was well aware of where we traveled!). I had nothing to hide, but my time was precious, and I could see that his lawyer was dragging things out, frustrating the process by asking me for more and more information. My lawyer told me that she didn’t want to upset the process by complaining; she wanted to play nice. It seemed to me that she was out of gas, and had lost any desire to be an ardent representative for me. Once again, neither of the lawyers wanted to drive the process efficiently to conclusion. My lawyer had warned me, meanwhile, that the other lawyer was known to be unresponsive when asked for information from her own clients, but demanding and impatient when she wanted information herself. She struck me as a caricature of a serious professional, and I’ve come to understand why she’s never travelled in the same circles as I have and I hadn’t heard of her before our separation. I do see how she makes her client feel like she’s helping him exact revenge versus getting to the finish line though.
After my wasband and I completed our undertakings (his were not onerous), we had a five-day hearing. We each made our case about what should happen with each asset and liability. Unlike my experience in commercial arbitration, the arbitrator asked very few questions – I assumed he was comprehending what he was hearing and reading.
On May 1, 2017, the arbitrator sent us his ruling, which came to about 50 pages, just as I was stepping onto a plane heading to a business meeting. Later that night, I read the document carefully, and I was shocked, again and again. It didn’t appear that he had listened or understood through the five-day hearing, and I saw little evidence that he had reviewed the documentary evidence provided to him. As I told my lawyer, I didn’t think he’d done her the courtesy of reading her closing argument. It seemed to me that he had merely cut and pasted the other lawyer’s closing argument, errors, misleading statements, and all. Though our file should not have a posed challenge to an arbitrator experienced in financial and family law matters, I saw that he got calculations wrong, misunderstood or ignored key documentary and testimony evidence and even created facts that neither party had alleged. Yet, he hadn’t recused himself or ask questions to assist him in fulfilling his obligation.
I asked my lawyer for an analysis of the rulings, and asked her to list what she thought the arbitrator got right and what she thought he got wrong. She indicated a couple of areas that seemed wrong, and said that was about it. “You win some, you lost some,” she told me. I strongly disagreed. I caught far more errors than she did. She characterized our file as akin to a difficult final exam from law school. While that may be true, none of the issues to be determined were novel. What became clear to me in that month is that, if there are financial matters beyond a mortgage, RSP’s and steady incomes, one should hire a commercial litigator and book a court date – or hire an arbitrator with demonstrated financial and commercial literacy and arbitration qualifications for the matters at hand.
At that time, I didn’t tally the errors. I was busy with work, moving, and travel that month, and I assumed it would all get fixed. In the end, the arbitrator’s errors amounted to more than $ 1.07 million in my husband’s favour, and that excludes the $500,000 (and counting) in legal fees – including that the legal fees I continue to pay to appeal those errors. I estimate my wasband has spent over $1 million in legal fees to date.
In that May 1 award, the arbitrator included the caveat that he had yet to rule on two items: the division of household contents, and the process by which we would transfer the title for our vacation home from me to my wasband. The arbitrator’s services so far had cost $75,000. Given the concerns his May 1 ruling raised – the math errors, ignoring key undisputed evidence and the creation of facts that no one introduced – I realized then that we had an issue of incompetence, negligence, corruption/breach of trust, or some combination of the three. But I could not get out of the process and little did I know the extent of the problem at that time.
Further, I could not have imagined that the two outstanding rulings to be made would balloon to more than 30, which would take nine months to resolve and would cost as much again — another $75,000 bill from the arbitrator. You don’t pay these fees going to court.
My wasband’s lawyer continued to throw gas on the fire by not moving to wrap up the file. She refused to provide an opinion she said she had regarding the process to transfer our Whitefish property to my wasband. She would not respond to my lawyer’s request to finalize matters. Instead of moving on, my wasband continued to work with his lawyer on finding ways to punish me for not wanting to be married to him anymore, to aggravate me, to prevent me from doing my work, and to keep our divorce from resolving. This family law business is a cash cow if one party isn’t prepared to move on. Someone that’s known us for a long time said “I thought [your wasband] was careful with his money”. He had been his entire life. But it was clear relationships that buoyed him fell away one by one and his bank account diminished while his lawyer was enriched with what could have been our daughter’s inheritance. My wasband has recently informed our daughter and me that he can’t help her with grad school.
How could this happen to two finance professionals? If it can happen to us, what about all those that aren’t financially savy-do they get taken advantage of even more? During my divorce arbitration process, I even asked myself if I had become some kind of conspiracy theorist. But the fact is, I have been in commercial litigation and this is a stark contrast – in those cases, the arbitrators were very smart, had relevant experience, asked good questions and issued sound rulings. I have also heard too many stories now about the issues with family law in Alberta and elsewhere – the shocking injustices to divorcing people and children of divorce. It’s abhorrent to me and significant change needs to occur. Not only for people like me that have a financial background, know what proper arbitration process looks like and have the resources to drive change, but particularly for those that don’t. What’s been shared with me is appalling and shameful. While parents/divorcing couples can create problems, they are not alone – the lawyers and the system are failing families. And it appears the regulator of the lawyers – the Law Society – is turning a blind eye to the problem.
I am and always will be an analyst. If I could reconcile the losses, if I could explain them, then I would be satisfied and walk away. But math is easy for me, and finances make sense to me; complex spreadsheets are my bread and butter. The arbitrator for my divorce agreement made simple math errors, and he made absurd commercial errors. One example is that he opted not to divide up our bank accounts, deeming them in some category distinct from our other assets. When the arbitrator requested I provide a list of concerns, I did so – he then told me that he required a big retainer to address them. I was not about to give him more money. Instead, I realized I needed to appeal the rulings that I could. I am currently set to recuperate payments for which he did not fulfill his contractual obligations, going back to 2016.
Going into mediation-arbitration, there was so much I didn’t know, including that my wasband’s lawyer and the arbitrator had been referring business back and forth for twenty years. In my line of work, that would constitute a disclosable conflict of interest. The professionals involved would disclose that conflict to their clients, who would then have the option to waive or not the conflict. But nothing was disclosed to me about their prior dealings, and I was never asked to sign any such waiver. I learned that family lawyers — the ones I worked with — did not have the requisite financial or commercial savvy to efficiently and effectively carry out their responsibilities. And it’s clear the professional conduct standards for family lawyers needs to be examined, upgraded to the standards in other professions, and enforced. The Law Society needs to get on top of this. In the interim, it might be a good idea for the government to move to protect the unsuspecting public and appoint an ombudsman. I would also now advocate for divorce mediators and arbitrators to be required to disclose their relevant professional credentials and experience pertaining to a file in advance of signing an agreement. I realized well after the fact that our arbitrator was not aware of the nature of the file when it was booked, and we were not aware of the nature of his qualifications and trusted that the lawyers were proposing a properly qualified arbitrator, as had been my experience in commercial arbitration.
I also couldn’t have known back then that the arbitrator would willingly breach the Arbitration Act, would take appeals of his own rulings months after those rulings had been made, and would make rulings beyond his jurisdiction. I couldn’t have known what would happen, but I wish I had. With the knowledge I have now, I never would have signed a mediation-arbitration agreement at all. This is why I am making my experience public — so other divorcing couples can avoid the traps my wasband and I fell into, and in so doing, escape divorce with better mental and financial health, and better outcomes for their kids.
