Latest / Your Estate Matters / Episode 56 - Smart Moves for Tough Family Decisions with Angela Thiele

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Episode 56 - Smart Moves for Tough Family Decisions with Angela Thiele · Your Estate Matters

• 0:02
  [SPEAKER_01]: Hello, and welcome to your State Matters, presented by Heritage Trust.
• 0:07
  [SPEAKER_01]: Your State Matters is a podcast dedicated to everything of states, including building and preserving your legacy.
• 0:13
  [SPEAKER_01]: If it's the state-related, we'll be talking about it.
• 0:16
  [SPEAKER_01]: We're having the conversations today that will help Canadians protect their families, their assets, and their legacies tomorrow.
• 0:31
  [SPEAKER_01]: Angela Thiel is a partner with Lindsey Kenny LLP, a general litigator with a varied practice.
• 0:36
  [SPEAKER_01]: She leads the family law group and is a very successful family lawyer with a varied practice recognized by best lawyers in Canada.
• 0:44
  [SPEAKER_01]: Ms Thiel is also a successful estate and employment law litigator who's appeared at all levels of court including the Supreme Court of Canada.
• 0:55
  [SPEAKER_01]: Angela, thank you so much for joining us on your estate matters.
• 0:58
  [SPEAKER_01]: We really appreciate your time and you sharing all your wisdom and expertise with us.
• 1:03
  [SPEAKER_00]: Happy to be here.
• 1:04
  [SPEAKER_01]: Do you want to share your journey into law and maybe why you chose to do family and a state's areas that are often so divisive?
• 1:13
  [SPEAKER_00]: I think it's fair to say that after 41 years doing this, that when I look back, I was from a single parent family with not a lot of money, and I, you know, worked my way through school and got my law degree.
• 1:27
  [SPEAKER_00]: And so when I started practicing, I really wanted to do more of helping people in terms of life events.
• 1:35
  [SPEAKER_00]: But I started in doing labor work and commercial litigation and but there was always a few family or a state matters coming along and when I am going Lindsay Kenny where I've been now for about 35 years I was planning on having a family and I wanted to have a practice that was a little bit more
• 1:57
  [SPEAKER_00]: flexible.
• 1:58
  [SPEAKER_00]: I could meet and didn't meet clients with my children and their children at playgrounds and things of that sort so that I could work around people's work schedules and their children schedules and the estate area was sort of a natural complementary practice area for me because again, life-changing events let's try to make this as positive for the families that I'm helping.
• 2:22
  [SPEAKER_00]: and let's try to do those types of practices in a resolution or into fashion.
• 2:28
  [SPEAKER_01]: So tell me were there some early seminal moments or pivotal cases that shaped your perspective or your style of practice?
• 2:37
  [SPEAKER_00]: One that I really remember and I continued to remember is that I was a student at Capney Murphy and I had the privilege of junior in a trial.
• 2:46
  [SPEAKER_00]: In those days I wasn't actually junioring.
• 2:48
  [SPEAKER_00]: I was kind of running around as a go-boy.
• 2:50
  [SPEAKER_00]: And with four really good celebrated council, and it was a case where a gentleman had transfers his shares in a very valuable family company.
• 3:01
  [SPEAKER_00]: He had a serious alcohol problem.
• 3:03
  [SPEAKER_00]: He was now dead.
• 3:04
  [SPEAKER_00]: His children were basically saying to their uncle, that didn't mean to transfer those shares.
• 3:11
  [SPEAKER_00]: He thought you were going to hold them and trust so that he didn't lose them because he had these alcohol and financial problems.
• 3:18
  [SPEAKER_00]: And what I remember most is some of the best litigation I've ever seen, lots of discussion about evidentiary issues, because there was a state of mind argument, you know, how do you get in the here, say?
• 3:31
  [SPEAKER_00]: And
• 3:32
  [SPEAKER_00]: On the side, I discussion about settlement going on and that trial settled on the third day, but I saw the best of lorry, but I also saw the best of people that weren't just I'm in trial and we're in trial and we're going to go to the end people that went, this is a family here that ultimately after this ends.
• 3:53
  [SPEAKER_00]: they're going to have to work together and our clients got the shares back and they continue to work with their uncle and the family company, you know, till they're probably the family companies still doing very, very well and they're still a part of, you know, the Vancouver Business community.
• 4:09
  [SPEAKER_00]: So you could have seen a trial decision that just ended up with a lot of animosity because in essence, this is a credibility dispute.
• 4:17
  [SPEAKER_00]: The uncle really was going to take it hard
• 4:22
  [SPEAKER_00]: But the lawyers decided that notwithstanding, they were already in trial, they were still room for resolution.
• 4:28
  [SPEAKER_00]: And that was really inspiring.
• 4:30
  [SPEAKER_00]: Plus, they got to see some of the best lawyers in the city as a very young lawyer, as well as an artichnics student.
• 4:35
  [SPEAKER_01]: So knowing you as a lawyer, Angela, because I've had the privilege of working with you for many years, I think that actually typifies my experience of you in that you are a permanent council, like the best of advocacy and litigation, but you're also incredibly pragmatic.
• 4:52
  [SPEAKER_01]: Can you genuinely care about your clients?
• 4:55
  [SPEAKER_01]: So, obviously, that early case must have guided your values or practice talk as I see that today and the way you really need.
• 5:03
  [SPEAKER_00]: Well, I also think that my personal background guides me.
• 5:06
  [SPEAKER_00]: It's interesting, after my dad died, my grandma died very soon after, and she died in a test date.
• 5:12
  [SPEAKER_00]: And my mom had three little kids, and Granny had a house.
• 5:16
  [SPEAKER_00]: And at that time, you know, the way things were done was money went to the public garden and trustee.
• 5:23
  [SPEAKER_00]: And I remember when I got older, saying to my mom, and was a lawyer, my mom, why didn't you ask for that money to be used to allow you to buy granny's house?
• 5:32
  [SPEAKER_00]: You know, for us, I mean, it was a beautiful home on the west side.
• 5:35
  [SPEAKER_00]: We lived in a basement suite on the east side.
• 5:38
  [SPEAKER_00]: You know, she probably could have afforded to do that, you know, with some help with her family.
• 5:42
  [SPEAKER_00]: But no one gave her that opportunity.
• 5:44
  [SPEAKER_00]: No one said to a single mom, hey, this is what I think you should do for the benefit of your children.
• 5:50
  [SPEAKER_00]: It's one of my practice areas now fighting with the public trust seat or let parents, you know, when there's a death that's unexpected and in test to see to let parents manage their children's money in a way that is going to be beneficial together.
• 6:02
  [SPEAKER_00]: You know, I think the house was $12,000.
• 6:07
  [SPEAKER_00]: I was seven, you know, 12 years later, I got like $8,000 back from the public
• 6:17
  [SPEAKER_00]: But our life would have been very different if we'd be living in that home.
• 6:21
  [SPEAKER_00]: My mom's life would have been very different.
• 6:23
  [SPEAKER_00]: Now, I think perhaps I might have been a little bit more spoiled if I lived on the West Side near UBC, maybe I wouldn't have gotten to where I am now.
• 6:32
  [SPEAKER_00]: But that choice should have been given to my mom and our family.
• 6:36
  [SPEAKER_01]: So, that early adversity is that partly what has driven you like you're the gold medalist of your law school class of your era.
• 6:46
  [SPEAKER_01]: You're notable and that you're one of the few female litigators certainly stone the game.
• 6:51
  [SPEAKER_01]: Like, what is it that has driven your success or being such an outlier?
• 6:57
  [SPEAKER_00]: Well, you'd have to talk to my 98-year-old mother about how much she nags, but in essence, I enjoy helping the people, my clients, but also, sometimes people that don't become my clients, it simply make a phone call and say, what would happen if I divorce now or what would happen if I had this fight?
• 7:18
  [SPEAKER_00]: And often I'm telling people to not hire me, to not litigate or to accept what may have been the decision of their parents or the decision of their husband and, you know, to try to act or say to some people.
• 7:37
  [SPEAKER_00]: You know, you sound like you have a pretty nice life with your husband.
• 7:41
  [SPEAKER_00]: And you know, I don't think you really understand what it's like being a single parent.
• 7:45
  [SPEAKER_00]: And I don't think you understand what it's going to be like for your children.
• 7:48
  [SPEAKER_00]: And I make that speech very often because I don't think.
• 7:54
  [SPEAKER_00]: personally that, you know, if there's no abuse and there's no infidelity, I don't think that women are better off ending a marriage, but in particular, I just don't think children are better off when a marriage ends.
• 8:07
  [SPEAKER_00]: So I do try to bring those sort of practical suggestions, like we tried marriage counseling.
• 8:17
  [SPEAKER_00]: You know, maybe instead of being so busy, saving money and trying to get ahead, maybe you guys need more vacations.
• 8:24
  [SPEAKER_00]: The things of that sort, or maybe if you're feeling unfamiliar with being a stay at home, mom, maybe you should try working part time.
• 8:33
  [SPEAKER_00]: I think your frustration that your role has a lot to do
• 8:37
  [SPEAKER_00]: perhaps just not stimulated by the choices you've made and I've had people come back and say to me you know years later that advice you could have taken me as a client charge me $10,000 and you told me to try again in my marriage or you told me not to fight you know my siblings for a little bit more money.
• 8:58
  [SPEAKER_00]: that is the part of law that I like is being able to make a difference in someone his life and do it in a fashion that I wouldn't say they remember, but I feel good about it and they apparently feel good about it because I will hear from people again, and when we do have to litigate, knowing that I've tried everything to resolve something before we had to litigate.
• 9:23
  [SPEAKER_01]: So what do you think is feeling a lot of the family conflict?
• 9:27
  [SPEAKER_01]: Like, you know, whether it's a family file or an estate matter?
• 9:31
  [SPEAKER_01]: Like, why is it that so many families are in difficulty?
• 9:36
  [SPEAKER_00]: Well, in the estate side, second families or second spouses, with kids of the first marriage, those are the most common disputes that I see.
• 9:46
  [SPEAKER_00]: Sometimes sibling rivalry in terms of siblings of the same family, you know, mom always liked you better or mom and dad gave you this and I didn't get that.
• 9:56
  [SPEAKER_00]: In the family area, I think it's life is tough, you know, in particularly Vancouver, people, you know, housing is expensive, people are stressed or having to work longer and harder there.
• 10:11
  [SPEAKER_00]: emails always going it's 24-7 and people just don't have time.
• 10:16
  [SPEAKER_00]: Sometimes for their spouses and the frustration they feel about their life sometimes comes out with, well, it would be better if I didn't have to worry about him or her.
• 10:26
  [SPEAKER_00]: If we're fighting and sometimes the fights are stemming from, you know, you're not doing enough to help me and my role.
• 10:33
  [SPEAKER_00]: And people start to think
• 10:39
  [SPEAKER_00]: And particularly for millennials or people, you know, when they're 40s where they are just finding life very hard.
• 10:48
  [SPEAKER_00]: Sometimes people are making this a decision that a separation divorce will make their life easier.
• 10:53
  [SPEAKER_00]: I don't.
• 10:55
  [SPEAKER_00]: philosophically understand that because if you love this person enough to have to marry him and have children with them, you can try to work through problems, but it's that disposable economy, I think right now.
• 11:08
  [SPEAKER_00]: Well, if I dispose of my spouse, I might be happier.
• 11:12
  [SPEAKER_01]: Let's talk about that.
• 11:13
  [SPEAKER_01]: Do you see generational differences and conflict, like whether it's, you know, Gen Z or millennials or X or boomers, DC differences and how conflict is approached or managed?
• 11:27
  [SPEAKER_00]: Yes, I do.
• 11:28
  [SPEAKER_00]: What I've really seen is the differences in family law, the fact that a woman can leave when she has to and there is enough money, there is enough child support, there's spousal support guidelines, there is a manageable framework so you can tell someone if you leave this is what you're looking at.
• 11:47
  [SPEAKER_00]: I think that that causes people to at least feel comfortable when the marriage is really not working.
• 11:55
  [SPEAKER_00]: and or there's you know abuse or or in fidelity and they just said I cannot be here.
• 12:00
  [SPEAKER_00]: It's very comforting to be able to tell people very clearly you should be entitled to this and you should be able to get that by agreement rather than by litigation because the person on the other side's going to know that they're going to tell their husband or the wife this is what your entitled to.
• 12:17
  [SPEAKER_00]: But I also think, generationally, there is a little bit of instant gratification or expecting certain things that I certainly didn't have in my generation.
• 12:27
  [SPEAKER_00]: You know, I didn't automatically have mommy and daddy giving me some money to help me buy a house, but sometimes it's in the younger generations it just seems too easy.
• 12:39
  [SPEAKER_00]: to divorce and then they actually hit the reality of the kids going back and forth and new partners coming into life and then in the estate area because we have cultural and generational divides where for example some cultures believe it is appropriate to give the sons more of the inheritance.
• 12:59
  [SPEAKER_00]: or more of the assets and they would give their daughters, and of course the daughters of this generation aren't going to stand for that, which is a good thing.
• 13:06
  [SPEAKER_00]: And the law is recognized that that cultural, we always give the money to the boy, is not going to be appropriate in our current society.
• 13:16
  [SPEAKER_00]: But those types of cases keep coming up much more prevalent than they ever were before.
• 13:23
  [SPEAKER_01]: Let's talk about gender differences.
• 13:25
  [SPEAKER_01]: So as you know, I used to practice family law and we see this in our offices and then the data is apparently the majority of marriages are actually ended by women.
• 13:39
  [SPEAKER_01]: Why do you think that is?
• 13:40
  [SPEAKER_01]: Why are women deciding more than men that they want to reset that they want to leave?
• 13:47
  [SPEAKER_00]: Because I think the women in a family have the toughest job, and you know, how you're doing this over 40 years.
• 13:53
  [SPEAKER_00]: 40 years ago, a stay-at-home mom could not have left.
• 13:57
  [SPEAKER_00]: The money wasn't there.
• 13:58
  [SPEAKER_00]: They weren't going to get proper child support.
• 14:00
  [SPEAKER_00]: They weren't going to be able to keep a home.
• 14:02
  [SPEAKER_00]: They weren't going to get proper spinal support.
• 14:04
  [SPEAKER_00]: So now when you tell a woman who's unhappy, here's the numbers, often the first discussion is will you have some help?
• 14:14
  [SPEAKER_00]: If you want to keep your house, will you have some help?
• 14:17
  [SPEAKER_00]: And of course, because of the generational wealth behind us now, you know, a parent can say, yes, I'll take a mortgage out of my house, to help you.
• 14:26
  [SPEAKER_00]: And so women who were 40 years ago trapped or were ending a marriage and living in poverty, they're not there anymore.
• 14:35
  [SPEAKER_00]: The law has advanced to the point where women feel safe ending a marriage.
• 14:40
  [SPEAKER_00]: What I'm seeing a lot of is great of a worse, where a woman gets an inheritance.
• 14:45
  [SPEAKER_00]: And she decides that's the time to leave her husband.
• 14:48
  [SPEAKER_01]: I've seen that too.
• 14:50
  [SPEAKER_01]: We talked about the cost of living and things like that.
• 14:53
  [SPEAKER_01]: Do you think that's playing into disputes and, you know, particularly in Vancouver where the cost of housing seems to have completely disconnected from what people actually make and Canadians are carrying record consumer debt?
• 15:10
  [SPEAKER_01]: Do you think that's a factor in some of the conflict we're seeing around family in a state disputes?
• 15:16
  [SPEAKER_00]: Well, absolutely, I think one of the hard parts is, for example, if you have a family on the North Shore and there is no, you know, they've, they've perhaps bought that house 10 or 15 years ago, it's gone way up, but neither them kind of forward to keep it and often the other party can't afford or one of the parties can't afford or both can't afford to stay on the North Shore.
• 15:37
  [SPEAKER_00]: So they're looking at moving their children out of their schools away from their friends.
• 15:43
  [SPEAKER_00]: And in my view that sometimes keeps people together, but unfortunately, people tend to think, well, if we keep fighting about it and giving money to lawyers, somehow they'll solve this problem for us so we can't afford to stay in our homes.
• 15:57
  [SPEAKER_00]: And it doesn't happen.
• 15:59
  [SPEAKER_00]: I will always, on the first consult, go through the, you know, what will happen and what could they possibly afford and could you get in a student is there some rental space in your house, you know, could your parents help.
• 16:14
  [SPEAKER_00]: And on the first console, I have, I will always say, you're not going to be able to keep your home.
• 16:20
  [SPEAKER_00]: And I'm not sure you're going to be able to afford anything on the North Shore.
• 16:23
  [SPEAKER_00]: And that sometimes ends the discussion right then, because, you know, the thought of a child having to leave their friends and leave their neighborhood and leave the community.
• 16:33
  [SPEAKER_00]: I mean, kids doing hockey and doing soccer with a bunch of friends for many years.
• 16:39
  [SPEAKER_00]: That devastating is apparent.
• 16:40
  [SPEAKER_00]: And I think as apparent myself,
• 16:42
  [SPEAKER_00]: went through a late life divorce, but I know that kept me marriage just the thought of what with the consequences be to my children.
• 16:52
  [SPEAKER_00]: And that was a time where we could have easily afforded a second house in the same neighborhood.
• 16:58
  [SPEAKER_00]: But time, my husband wanted to go by a boat instead, and I was going, well, where am I children going to be living when you have them?
• 17:07
  [SPEAKER_00]: So ultimately,
• 17:11
  [SPEAKER_01]: Let's talk about when litigation sometimes is unavoidable.
• 17:16
  [SPEAKER_01]: So there's a huge push to alternative dispute resolution and mediation.
• 17:23
  [SPEAKER_01]: maybe even collaborative family law, you know, certainly the courts don't want families in the system because of the costs, not just financial, but, you know, to relationships.
• 17:35
  [SPEAKER_01]: And, but there are some disputes that are intractable.
• 17:39
  [SPEAKER_01]: And, you know, you and I practice for a long time.
• 17:41
  [SPEAKER_01]: Like sometimes it's the personalities, maybe they've got a personality disorder, or maybe there's such a value differential,
• 17:49
  [SPEAKER_01]: How do you know when sometimes you just need a third part of your decision-maker?
• 17:54
  [SPEAKER_01]: How do you know when litigation is unavoidable?
• 17:56
  [SPEAKER_00]: I always say litigation is never unavoidable.
• 17:58
  [SPEAKER_00]: I have not gone to trial and a state matter for many, many years because we have the wonderful resources of two retired judges who mediate at other retired judges who have mediated over the years in terms of family law, allegations of abuse or things where one party is specifically
• 18:24
  [SPEAKER_00]: advanced acclaim with respect to the children in terms of not being, you know, not sharing the children.
• 18:31
  [SPEAKER_00]: Those probably go to trial more than they should.
• 18:34
  [SPEAKER_00]: That type of person, and I can say on the other side, is probably, you know, the only type of case that I've had to take into trial.
• 18:43
  [SPEAKER_00]: I'm in the last few years.
• 18:45
  [SPEAKER_00]: But I have sent a lot of those clients away as well because if somebody is just not listening to me saying, this is not going to improve your life or your child's life.
• 18:56
  [SPEAKER_00]: This judge doesn't know anything about your life.
• 18:59
  [SPEAKER_00]: There's a judge who's now in the court of appeal that when he did a JCC many years for me.
• 19:04
  [SPEAKER_00]: He said to both parties,
• 19:13
  [SPEAKER_00]: I'm just a stranger who happens to be on the corner of how and it's fine.
• 19:18
  [SPEAKER_00]: I don't know your shoulder.
• 19:19
  [SPEAKER_00]: I don't love your shoulder.
• 19:20
  [SPEAKER_00]: I don't really care, you know, what happens to your children, but you would want me to make that decision.
• 19:26
  [SPEAKER_00]: Does that really make any sense?
• 19:27
  [SPEAKER_00]: And I use that speech over and over again.
• 19:30
  [SPEAKER_00]: And I've told the justice, you know, on a private conversation that I use his speech and he really
• 19:35
  [SPEAKER_00]: I appreciate that because it was, I think, pretty spontaneous, but it was just a perfect note.
• 19:41
  [SPEAKER_00]: And if people hear you about, you know, judges, we don't have very many family lawyers that went to the bench.
• 19:49
  [SPEAKER_00]: We have some very smart judges.
• 19:51
  [SPEAKER_00]: But smart is not what you need in family law.
• 19:53
  [SPEAKER_00]: What you need is resolution, and you don't get resolution from a judge.
• 19:58
  [SPEAKER_00]: And when you're finished, I've never had someone come to me and say, well, I was really glad Angela, we did that trial.
• 20:06
  [SPEAKER_00]: That made me feel really good when the judge decided in my favor.
• 20:09
  [SPEAKER_00]: What I've had is people come to me and say, you know, I really wasn't sure at the mediation when you were encouraged, I mean, to take this deal.
• 20:17
  [SPEAKER_00]: But you know, your bill was reasonable and I was able to move on quickly.
• 20:22
  [SPEAKER_00]: I didn't have to wait for a judge.
• 20:24
  [SPEAKER_00]: I'm really happy that you encouraged me to do that.
• 20:27
  [SPEAKER_01]: But what about disputes that are truly zero-sum?
• 20:29
  [SPEAKER_01]: Like, someone gets a job in Ottawa that is going, they're going to make much more money and be able to afford a house.
• 20:40
  [SPEAKER_01]: So one of the parents wants to move there and take the kids and the other parent can't move.
• 20:46
  [SPEAKER_01]: Like, aren't there some disagreements that you simply need?
• 20:51
  [SPEAKER_01]: a third party decision maker because there isn't a middle ground.
• 20:55
  [SPEAKER_00]: Well, there is a middle ground because you can say that people you're going to lose.
• 20:59
  [SPEAKER_00]: I mean, there's not that many pieces of litigation where you can't with experience, look and say you're going to lose.
• 21:06
  [SPEAKER_00]: But yes, I've certainly argued a case like that.
• 21:10
  [SPEAKER_00]: Someone wanted to move the kids to California and being successful.
• 21:14
  [SPEAKER_00]: I think if that client on the other side hadn't been so unreasonable and hadn't had an unreasonable lawyer, then we wouldn't have had that argument because it was clear.
• 21:23
  [SPEAKER_00]: She'd actually, the kids had had to be brought back by a court order when she took them to California without permission, and she was found in contempt and notwithstanding that she was heading off to trial.
• 21:34
  [SPEAKER_00]: So, yes, those are the worst cases, but as they say, if you pretty well say,
• 21:40
  [SPEAKER_00]: You're going to lose.
• 21:41
  [SPEAKER_00]: If they're my client, you're going to lose.
• 21:43
  [SPEAKER_00]: They use your listen.
• 21:44
  [SPEAKER_00]: And if they don't listen, they go to somebody else.
• 21:46
  [SPEAKER_00]: But the person who's got to, you know, doesn't have a choice.
• 21:49
  [SPEAKER_00]: There's their spouse is going to go to for their part.
• 21:52
  [SPEAKER_00]: It's going to go to trial.
• 21:53
  [SPEAKER_00]: If, you know, whatever they do.
• 21:56
  [SPEAKER_00]: Of course, those are the types of cases.
• 21:58
  [SPEAKER_00]: The zero, some cases.
• 21:59
  [SPEAKER_01]: mental health professionals often say that there's likely a disproportionate amount of people in the court system that have mental health and or personality disorder diagnoses.
• 22:12
  [SPEAKER_01]: I mean, they have sort of an invisible disability where maybe they have zero some thinking or
• 22:18
  [SPEAKER_01]: Do you experience that and what do you do when you've got either your client or perhaps a party in the other side that has those characteristics?
• 22:25
  [SPEAKER_01]: How do you manage that?
• 22:27
  [SPEAKER_00]: I certainly have had that type of file.
• 22:30
  [SPEAKER_00]: It's not really that manageable.
• 22:32
  [SPEAKER_00]: In terms of, I fortunately have never had a client of my own like that.
• 22:37
  [SPEAKER_00]: I think perhaps because I or recognize that fairly early on and I don't take the file, but I have had that on the other side and there's really no way to manage it.
• 22:46
  [SPEAKER_00]: You have to be in front of a judge.
• 22:48
  [SPEAKER_01]: So let's talk about planning.
• 22:50
  [SPEAKER_01]: What do you think the mistakes are that people make that result in their families ending up in disputes or litigation?
• 22:58
  [SPEAKER_00]: They don't talk to their families.
• 23:01
  [SPEAKER_00]: So in terms of planning, particularly if you're talking about a blended family or a second family, you have to talk to your family.
• 23:10
  [SPEAKER_00]: I also think that you should be giving children funds for things that are important if you could afford to do it, a down payment, and treating them very similarly throughout their lives.
• 23:22
  [SPEAKER_00]: But when you get a remarriage and a younger family and children that still have to be educated and perhaps a second wife, younger children as against adult children.
• 23:31
  [SPEAKER_00]: there's no easy way and people are going to be unhappy but I think if you have that discussion and say hey look guys you know older children you know you guys got into the market a long time ago I paid for your college education I gave you a down payment
• 23:47
  [SPEAKER_00]: I'm your all doing well financially, my priority has to be for these younger children that have not yet had those advantages with a real estate market that's a pop up and my new spouse because, you know, she is the mother of these children.
• 24:03
  [SPEAKER_00]: they won't like it, but they sure will like it more if they hear about it when you're alive and have the possibility of saying, well, okay, that we don't really think that's that fair, but, you know, we understand what you're doing, what you're doing.
• 24:18
  [SPEAKER_00]: I think that is the worst thing that people can do is just leave the surprise for, you know, kids who then will
• 24:26
  [SPEAKER_00]: You don't have some animosity to the second family.
• 24:29
  [SPEAKER_00]: The pieces of litigation that I have done, that ended up in court were all second family pieces.
• 24:36
  [SPEAKER_01]: So it's interesting that more lawyers don't combine a family in a state's practice.
• 24:41
  [SPEAKER_01]: Like certainly that's something I did, I know that's something you do, but they're so an extricably linked.
• 24:47
  [SPEAKER_01]: Why do you think that they're sort of siloed?
• 24:50
  [SPEAKER_01]: And what would you say to our colleagues or practitioners about maybe serving clients by integrating those areas better?
• 24:57
  [SPEAKER_00]: It surprises me too.
• 24:59
  [SPEAKER_00]: I was in court yesterday speaking to an order with a very good colleague.
• 25:03
  [SPEAKER_00]: And we were talking about the fact that I was coming to do this and my blended practice.
• 25:08
  [SPEAKER_00]: And I said, you know, you got a great law firm and some really smart people at it.
• 25:11
  [SPEAKER_00]: Do you have anybody doing a state work?
• 25:14
  [SPEAKER_00]: And he said, no, I just, I said, but it's so complimentary.
• 25:17
  [SPEAKER_00]: And, you know, he's a senior like myself and getting to that age where we're very attractive to, you know, people of our age group that are trying to solve these problems.
• 25:27
  [SPEAKER_00]: But I think it's just people who are going on really good at what I'm doing now.
• 25:31
  [SPEAKER_00]: I'm a family law and I'm well-recognized.
• 25:34
  [SPEAKER_00]: I don't want to change streams where, you know, when I was coming through, I always had and in both sides, my partner Cassandra Drake, my associate Catherine Culver, everyone in my family-long group is doing some estate work as well.
• 25:51
  [SPEAKER_00]: And then we also have the estate slisters on in our firm, but a few of them to help with the planning.
• 25:57
  [SPEAKER_00]: I think it's a mistake.
• 25:59
  [SPEAKER_00]: or family lawyers not to even sometimes understand issues of the state.
• 26:04
  [SPEAKER_00]: And just simple things like taxes.
• 26:07
  [SPEAKER_00]: I'm doing a file right now where one colleague in the estate area said something to the effect of, oh well my client can get that joint account, a joint investment account tax free.
• 26:18
  [SPEAKER_00]: And I said no, you can't.
• 26:19
  [SPEAKER_00]: You know, you really need to look at tax and understand how this is going to work because when we're discussing a resolution, you know, it's between step mom and step son and there's the resolution where someone gets the role over benefit of an RSP or something or a tax of a investment account is much more beneficial than a whole bunch of tax being paid and I think.
• 26:44
  [SPEAKER_00]: Frankly, with family lawyers, we don't have enough of them that really understand tax because the same thing when you're settling a family file, looking at butterfly transactions, making sure you're talking to your clients accountent, making sure you understand what you can do with your client's corporate structure too.
• 27:02
  [SPEAKER_00]: you know, be more tax-efficient in the settlement.
• 27:05
  [SPEAKER_00]: And so that tax knowledge works in both family and estate matters.
• 27:09
  [SPEAKER_00]: And I don't think enough of my colleagues have that.
• 27:11
  [SPEAKER_00]: I do remember many years ago you telling me you didn't understand my tax structure in the way I'd organized my affairs.
• 27:19
  [SPEAKER_00]: And some of the ways you can do things for people in a relatively cheap fashion,
• 27:30
  [SPEAKER_01]: So let's talk about some ADR solutions that are available for people if they're going to avoid the really divisive expense of time consuming litigation process.
• 27:40
  [SPEAKER_01]: So you need to tell our listeners like what is mediation and what are some potential benefits.
• 27:47
  [SPEAKER_00]: Oh, God mediation is is a lifesaver really we didn't have like in my first 20 years of practice.
• 27:54
  [SPEAKER_00]: I never did a mediation because there weren't a lot of mediators out there.
• 27:58
  [SPEAKER_00]: I think in 1984 some of the first family mediators came along and they're still there.
• 28:04
  [SPEAKER_00]: And one of my biggest concerns is all people with this great experience mediating who always helps settle my files, are going to retire.
• 28:12
  [SPEAKER_00]: And so I'm really pleased to see younger mediators coming along.
• 28:16
  [SPEAKER_00]: But the benefits are that you know that those hard feelings you have about a matter which really aren't going to help you at all in court if you sit there in articulate well I think this is really unfair.
• 28:29
  [SPEAKER_00]: Well, if you articulate that to your mediator and you have a good mediator, you get that out and the mediators are very good at getting you to express your feelings before they try to get you to settle and getting the feelings from both sides as to, you know, what led to the breakdown of this marriage or what are you most upset about and in terms of an estate file, what would be a win for you, what do you think should happen?
• 28:57
  [SPEAKER_00]: What do you think a judge would do?
• 28:59
  [SPEAKER_00]: And the mediators say, well, you know, to understand currently, I can't get a civil trial in a state matter until March, 2027.
• 29:08
  [SPEAKER_00]: And I have to be in a lottery to see if I'll actually get a judge that month.
• 29:14
  [SPEAKER_00]: I went out yesterday to do a very contentious court matter.
• 29:18
  [SPEAKER_00]: I had booked in advance months and months and months of calling for a date.
• 29:23
  [SPEAKER_00]: I didn't have a judge.
• 29:24
  [SPEAKER_00]: Now fortunately, my friend and I had
• 29:26
  [SPEAKER_00]: It's been the last evening settling the matter and I had said to him we're going out to New Westminster every time in New Westminster even though I'm supposed to have a judge, I don't get one.
• 29:37
  [SPEAKER_00]: So people are understanding that you're going to wait two years plus.
• 29:42
  [SPEAKER_00]: for a decision.
• 29:43
  [SPEAKER_00]: And in the meantime, you've got to run your life.
• 29:46
  [SPEAKER_00]: And in family cases, we generally get some priority with judges, but not always.
• 29:51
  [SPEAKER_00]: We get bump the same as everybody else.
• 29:53
  [SPEAKER_00]: And again, saying, I don't control that.
• 29:57
  [SPEAKER_00]: I cannot control whether you'll get a judge.
• 29:59
  [SPEAKER_00]: I can control whether we will succeed at mediation by having you sort of look at the various options.
• 30:06
  [SPEAKER_00]: And this mediator's going to help us.
• 30:08
  [SPEAKER_00]: What bothers me sometimes is you can't get people to agree to a mediation.
• 30:13
  [SPEAKER_00]: If two files right now, very similar, one of them, the other lawyers said, Oh, no, we're going to do affidavis.
• 30:19
  [SPEAKER_00]: We're going to do deposition.
• 30:21
  [SPEAKER_00]: We're going to do all this from day one.
• 30:23
  [SPEAKER_00]: I said, let's go mediate with
• 30:25
  [SPEAKER_00]: Jane Dardy and Sandra Valens, wouldn't agree.
• 30:28
  [SPEAKER_00]: We finally have a court date in middle October.
• 30:32
  [SPEAKER_00]: Two days is the summary petition, but she wants to make it a trial.
• 30:36
  [SPEAKER_00]: She's finally said she'll agree to mediate.
• 30:38
  [SPEAKER_00]: Conversely, similar file issued in my pleadings because I needed to put a restriction on the title.
• 30:44
  [SPEAKER_00]: I won't use the CPL word because flood people don't know what that means.
• 30:48
  [SPEAKER_00]: but when the other lawyer got on and we sort of exchanged some letters, she said to me, do you want me to do a response?
• 30:57
  [SPEAKER_00]: And this is within the first month, I said, I'm not gonna require you to do a response if you will agree to go to mediation as soon as possible.
• 31:03
  [SPEAKER_00]: She says, absolutely, Jaden Sandra said yes.
• 31:06
  [SPEAKER_00]: So there's the difference.
• 31:08
  [SPEAKER_00]: The first five of the clients have each, I'm sure spent over $100,000 on things that were really not necessary.
• 31:14
  [SPEAKER_00]: And on this one, we got to set up meetings out
• 31:18
  [SPEAKER_00]: You know, I think resolve and mediation and maybe the clients at the end of the day will spend $30,000, you know, I think both cases were equally resolved with mediation quickly, but you needed to have a buy-in by both council.
• 31:35
  [SPEAKER_00]: What makes a good mediator?
• 31:37
  [SPEAKER_00]: mediators have so much empathy.
• 31:39
  [SPEAKER_00]: What I like about a mediator and there's several that I use routinely is when the clients say she really listened to me.
• 31:49
  [SPEAKER_00]: He really told it like it is.
• 31:52
  [SPEAKER_00]: They really said, you're not going to succeed in that argument, but they said it with kindness and with sort of authority, not because they wanted to tell me I was wrong, because they wanted to tell me that if we don't think that you're going to succeed in that argument and we're, you know, mediators or senior lawyers, some of them had,
• 32:13
  [SPEAKER_00]: You know, litigation practices as well.
• 32:16
  [SPEAKER_00]: Most of them had a litigation practices as well.
• 32:18
  [SPEAKER_00]: Hearing it from them, and most times confirming what I've already told them, but they don't know anything.
• 32:24
  [SPEAKER_00]: They're just an independent, neutral third party, and with the retired judges, it is so effective for one of them to say which they often do.
• 32:35
  [SPEAKER_00]: If I was judging this matter, this is what I would have done.
• 32:39
  [SPEAKER_00]: Mary Ellen Boyd, I use that exact speech on a client of mine about 10 years ago.
• 32:45
  [SPEAKER_00]: I'm Mary and Alan when she was mediating those words would come out and you'd be saying to your client, well, if I'm saying the same thing as this retired judge mediator, why wouldn't it be encouraging you to go to trial?
• 32:57
  [SPEAKER_00]: If I'm encouraging you to go to trial when the mediator says you're not going to see it, when I say you're not going to succeed.
• 33:04
  [SPEAKER_00]: Do you not think I'm just trying to, you know, take money from you that you shouldn't want to give me and a lot of my clients will say, I just want to fight this, I just want to fight this and I'm like, well, okay, but you have to understand, I can't, I can't ethically tell you to do that and I don't want to tell you to do it.
• 33:21
  [SPEAKER_00]: I don't need your money, the law firm doesn't need your money, we want to climb to the end of the day.
• 33:26
  [SPEAKER_00]: is happy with the service we've gotten from me and thinks the result is a good result.
• 33:31
  [SPEAKER_00]: And you don't have to get that good result in the courtroom.
• 33:34
  [SPEAKER_00]: And you likely will not get that results in a courtroom.
• 33:37
  [SPEAKER_01]: You're describing to me advice from a really good lawyer.
• 33:41
  [SPEAKER_01]: So tell me, what is a great lawyer?
• 33:43
  [SPEAKER_00]: I think a great lawyer is someone that puts their client's interests ahead of
• 33:50
  [SPEAKER_00]: they never think about billing, they try to be very practical in terms of, well, you could do this Chambers application, but right now Chambers is chock full of people and I would have to sit there for eight hours and I might not get a judge and I might have to sit there for another eight hours and I might not get a judge.
• 34:10
  [SPEAKER_00]: I understand why you're upset about this particular issue, but it is not something that I suggest that you take to court.
• 34:17
  [SPEAKER_00]: I think it's also talking in our family cases a lot about.
• 34:23
  [SPEAKER_00]: mommy and daddy are going to court and that's going to take him another year before it's over and they're going to see their parents in conflict for at least a year and doing things like you know making phone calls and recording them and videoing you know transitions and exchanges.
• 34:43
  [SPEAKER_00]: I've had because I've been doing this long enough.
• 34:45
  [SPEAKER_00]: I've had adult children come back to me and meet me socially or meet me with their parents, why still see and say, wow, you know, on some of our friends, like they're still wrecked from their parents divorced.
• 34:57
  [SPEAKER_00]: You know, I was really glad that your mom had you as a lawyer.
• 35:01
  [SPEAKER_00]: You know, she didn't like, she didn't fight and fight and fight.
• 35:03
  [SPEAKER_00]: It's really awful when, you know, there's parents that can't talk to one another, even, you know, can't go to a wedding.
• 35:10
  [SPEAKER_00]: their children or a graduation of their children without having a barrier between them.
• 35:15
  [SPEAKER_01]: That leads me to the legacy of one of the leaves.
• 35:18
  [SPEAKER_01]: You've had a long, really successful career.
• 35:21
  [SPEAKER_01]: You've done a lot of interesting cases.
• 35:24
  [SPEAKER_01]: How do you want to be remembered?
• 35:25
  [SPEAKER_01]: How do you want this profession to be different after you've been in it for so long in the trenches?
• 35:31
  [SPEAKER_00]: I'm really encouraged by the young lawyers I see in the family area.
• 35:35
  [SPEAKER_00]: I think there is more interest in early resolution.
• 35:39
  [SPEAKER_00]: I think there is more practicality in some of the young lawyers.
• 35:43
  [SPEAKER_00]: I think the legacy of, you know, certainly at my firm, you know, saying, don't fight that.
• 35:49
  [SPEAKER_00]: Don't encourage that argument.
• 35:51
  [SPEAKER_00]: You know, if this client isn't listening to us, you need to tell him to go someplace else because we're not doing them any favors if they won't listen to us.
• 35:59
  [SPEAKER_00]: I am, you know, really pleased at any fall in which I get to have a younger lawyer.
• 36:05
  [SPEAKER_00]: I'm always going, wow, you know, you are smart, but you also have empathy.
• 36:11
  [SPEAKER_00]: And when I say, I think it would be more practical if we did this in this file.
• 36:15
  [SPEAKER_00]: You go, oh great, you know, let's, yeah, let's save a client the money.
• 36:19
  [SPEAKER_00]: That's the legacy I'd like to leave.
• 36:21
  [SPEAKER_00]: I find sometimes I have to tell my people,
• 36:24
  [SPEAKER_00]: You know, whether it's start to do a particular task and I'm going to know that that's just a task, you know, you need to look at your file from what do you want to see at the end.
• 36:34
  [SPEAKER_00]: Now is this particular task going to really advance us to the end.
• 36:38
  [SPEAKER_00]: So for example,
• 36:40
  [SPEAKER_00]: I often don't do my response to pleadings right away.
• 36:42
  [SPEAKER_00]: I kind of have to be forced to do them because I don't think it advances anything.
• 36:46
  [SPEAKER_00]: If I tell my friend what my positions are, but that's just a piece of paper you've got to do.
• 36:53
  [SPEAKER_00]: So I actively look for ways to save money for clients but also save conflict because sometimes when you put in a pleading or an affidavid, some somewhat,
• 37:05
  [SPEAKER_00]: nasty things about the other party, which aren't going to make any difference to the resolution, but you just happen to want to say them, you're not going to resolve.
• 37:14
  [SPEAKER_00]: So if you could avoid, you know, when I, sometimes I get letters that are just so aggressive and antagonistic, that I will pick up the phone to my friend, you know, who I usually know and say, look, I don't think this file is something we're going to really be fighting about, but if I was to send your letter to my client,
• 37:34
  [SPEAKER_00]: we would be fighting.
• 37:36
  [SPEAKER_00]: So I'm not going to send your letter to my client.
• 37:38
  [SPEAKER_00]: So let's see how we can maybe batten down the aggressive conflict, you know, sort of name calling that's going to cause our clients to explode and a lot of cost being spent.
• 37:50
  [SPEAKER_00]: It's not always effective.
• 37:52
  [SPEAKER_00]: I have a particular
• 37:54
  [SPEAKER_00]: said to him, you know, if you send me one more letter that asserts family violence, I'm just going to start to rip them up, you know, because, you know, you're just trying to create a record and that's that's not particularly helpful.
• 38:07
  [SPEAKER_00]: That file will probably be in trial because that lawyer won't mediate or is client won't mediate.
• 38:13
  [SPEAKER_00]: So there are some lawyers that I, you know, there's a certain type of lawyer, I've been fairly lucky with the files I have that I don't very often hit that, you know, lawyer that wants to just ratchet it up, ratchet it up, ratchet it up, and I feel sorry for those clients that end up with a lawyer like that because if we become an ally in the fight, rather than an advocate,
• 38:38
  [SPEAKER_00]: If we become a yes sure right lawyer, well, we make more money, but have we really serve the client, you have to keep that new quality, you have to be prepared to say to your client, you're not right.
• 38:51
  [SPEAKER_00]: And you know, you're going to have a fight that you can't afford.
• 38:54
  [SPEAKER_00]: And it's going to hurt your kids.
• 38:56
  [SPEAKER_00]: And in the estate area, it's the same.
• 38:58
  [SPEAKER_00]: This is your family.
• 39:00
  [SPEAKER_00]: Your parents did some things that maybe you weren't happy about.
• 39:04
  [SPEAKER_00]: But this is your family.
• 39:05
  [SPEAKER_00]: Is it really going to matter that much that your sister got an extra $100,000, because she's got three kids and mum and dad wanted to give her a little bit more.
• 39:14
  [SPEAKER_00]: That's the way I try to train my young lawyers.
• 39:18
  [SPEAKER_00]: That's the attitude I try to take to the lawyers that I'm against.
• 39:23
  [SPEAKER_00]: there are some lawyers that I will not take files against because I just don't think it's worse the aggravation to deal with someone who wants to practice in a very aggressive fashion for no good reason.
• 39:36
  [SPEAKER_01]: Well, you're a lawyer that I always want to be on the other side of Angela and I really appreciate your time and you sharing all your wisdom knowledge of us.
• 39:45
  [SPEAKER_00]: You're welcome.
• 39:46
  [SPEAKER_00]: Thank you.
• 39:46
  [SPEAKER_01]: Thank you.
• 39:47
  [SPEAKER_01]: This podcast is for informational purposes only and should not be considered individual legal, financial, or tax advice.
• 39:54
  [SPEAKER_01]: Make sure to consult the advisor of your choice to advise you on your own circumstances.
• 40:02
  [SPEAKER_01]: Thank you for joining us for this episode of Your State Matters.
• 40:05
  [SPEAKER_01]: If you like this podcast, make sure to follow it on your podcast platform of choice.
• 40:10
  [SPEAKER_01]: Whether you're planning your own estate or your acting is executive for somebody else's, Heritage Trust can help.
• 40:15
  [SPEAKER_01]: Partner with Heritage Trust to protect your family, your assets, and your legacy.
• 40:20
  [SPEAKER_01]: If you'd like more information about Heritage Trust, please visit our website at HeritageTrustCompany.ca.
• 40:33
  [SPEAKER_01]: This podcast is produced by podfathers Creative.