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WHAT IS CREATIVITY FOR LAWYERS?

Most of us are proud of creative things we have done in our jobs, when we have done something new, unexpected and beneficial. Creativity for lawyers means finding solutions to legal problems that are outside the bounds of conventional legal thinking. Here is an example of such creativity by one of our senior partners, Bill Comery (now retired).

THE PROBLEM

Our family law client had been the homemaker in the lengthy marriage. The husband, who managed a golf club, was refusing to produce any substantial information as to his assets. Our client was demoralized, and advised Bill that at the time of separation there had been no matrimonial home, i.e. she and the husband had been renting their house next to the golf club. She felt there was nothing worth fighting about, and was ready to capitulate and sign a highly unfair separation agreement. How could we persuade her to hold out for proper disclosure? How could we force the husband not only to pay attention, but to pay up?

CONVENTIONAL SOLUTIONS

The usual solution (and we do this, of course, very frequently) is to start an action for division of property under the Family Law Act. At the time in question, that would have involved at least another two years before trial and resolution. In the course of the action we could certainly have obtained - at considerable legal expense - discovery of the husband's financial circumstances and even court orders that the husband provide such documentation. It could be ruinous for both parties, but more likely in this case, the wife because of her mental and emotional condition would have simply capitulated.

CREATIVE SOLUTIONS

Bill's experience told him that in a case like this there had to have been at one time, at least, a matrimonial home with some equity in it. He asked our client for a history of all their residences during the marriage, and undertook to carry out at no charge to her some property searches on each of what turned out to be 5 houses . His idea was to determine if any of the houses had been owned by the husband or couple, and if so, what kind of value had been received when it was sold.

Bill got lucky with the searches. The last home had had extensive land attached, which, it turned out, was the land of the husband's golf course. The property search indicated that, unbeknownst to her, our client had in fact owned a one-half interest in the land. The search showed a transfer by her of her interest to a numbered company for a sum of $30,000.00. From questioning our client about the transaction, Bill learned that she had never signed anything to that effect, had never received $30,000.00. The numbered company turned out to be the golf club -- of which the husband turned out to be owner.

Bill's solution had nothing to do with family law. He started an action claiming one-half of the golf club, and easily tied up title to property. The husband now had to deal with the matter because his business was directly threatened. Our client was now motivated herself. The happy result for our client was a negotiated settlement whereby she essentially became half-owner of a golf club, and was paid her costs of the action.

SOME REMARKS ON CREATIVITY

Of course inspiration is 99% perspiration. Bill would not have arrived so easily or naturally at the idea of claiming a half-interest in the club had he not had an instinct developed from extensive experience with family law cases and litigation in general. At Fleury, Comery both Greg McConnell and Stephen Fleury are experienced family law practitioners. If you need assistance for a family law matter, we will do our best to find a creative solution that suits your own circumstances.

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Law Offices of Fleury, Comery LLP
215 Morrish Road, Suite 104, Scarborough, Ontario, M1C 1E9
Office: (416) 282-5754 Fax: (416) 282-9906
E-Mail: thefirm@fleurcom.on.ca

Updated: November 2008