STEVEN McCUTCHEON, FOUNDER McCUTCHEON FAMILY LAW
Steven McCutcheon knows that people in the middle of family law matters are often suffering with the trauma and grief of family breakdown. As a senior lawyer who has had more lives than most cats, he also knows they need a lawyer with experience and integrity to help them through their situation.
“You’ve got to trust your lawyer and you’ve got to like your lawyer. It’s got to be a good fit,” Steven explains. “It can get grossly expensive, but you can’t afford not to use a lawyer. That is a hard pill to swallow when you’re in the middle of a situation that can be as financially critical as it is emotionally stressful.”
Steven’s experience is rather unique. He graduated from Queen’s University and then completed his law degree at the University of Windsor. He was called to the bar in 1987. He has been a professional ice skater, an importer of British car parts, general manager of a high-end automotive restoration shop and exotic car dealer and a police officer. He was an Adjudicator with the Ontario Rental Housing Tribunal for 6 years and, most recently, he has practiced Family Law exclusively for the past 14 years.
My Business Magazine interviewed Steven to try and bring some calm to the chaos of separation, divorce, child custody and family financial support.
My Business Magazine (MBM) People who need a family lawyer are often in a state of grief or distress over family breakdown. What is the first thing you tell people to help them calm down and deal with the laws that affect their situation?
Steven McCutcheon: Most people only see a lawyer once or twice in their lives and it is often for not very happy reasons. I am there to take care of them, but I am looking at the situation from a legal perspective, not a mental health perspective. I regularly send clients to counsellors, but I have to be their coach, their sage and their most trusted ally. Taking care of mental wellness issues is a primary concern for anyone experiencing family breakdown. I am not a counsellor, but I do need a grasp of your background in order to help tell your story to the courts.
Then, I try to explain the situation from a legal point of view. I also try to tell people who come to see me basic information about the process and to dispel some of the common (mis)beliefs. Like, you are considered common law partners after a year, and legally it’s just the same as being married which is not true. These are what I like to call ‘bar room myths’ or common knowledge that is not actually true.
MBM: Prior to getting involved with family courts, people often have no idea how the system works or even what words like “custody” and “primary residence” really mean. What are the basic terms people need to be aware of before they come see you?
Steven McCutcheon: First, we talk about other processes in the system: mediation, lawyer-assisted negotiation and collaborative law. Litigation before the courts is a last resort and judges generally want to see that there has been every attempt to resolve issues of conflict before the courts are used.
In terms of language, we usually talk about ‘primary residence’ and ‘primary care-giver.’ That means, who’s going to spend more time with the kids, who has the children spent the most time with so far and why, who has the time to care for them and what is the motivation of the other person in seeking another arrangement? Do they want to have the children greater than 40% of the time because they are a good parent or so they only have to pay off-set child support rather than the full guideline amount?
Sometimes, even if the primary caregiver gives the other parent 50%, they discover they can’t do it or that income levels won’t affect the level of support due. In most cases, if they still have to pay full guideline, they don’t want 50% of the responsibility of day-to-day childcare.
A lot of lawyers don’t give their parents the bad news or the reality check, but I do. Some mothers want to deny their ex-husbands any time with the kids because they have never been involved with hands-on childcare. They’ll say, “I don’t think he’s qualified,” but when he is required to learn how to take care of his children every other weekend, he will learn. Unless he’s an axe-murderer, the judge is going to give him visitation and is likely to see the mother in a poor light for seeking to deny him access. That’s hard to accept, but lawyers need to advise their clients when they are being unreasonable.
MBM: The case results section of the firm web site shows your involvement in high-conflict cases. Often, these cases appear to feature one party who is completely unreasonable or who believes the law itself can be put aside for them. How can you help your clients navigate these kinds of situations?
Steven McCutcheon: Every case is determined by circumstances. There is no accounting for someone who is over the edge. The best thing the reasonable party can do is be consistent and come to the table with clean hands. With all of the other options for conflict resolution there are, especially when there are children involved, for anything to go to trial, at least one or both parties has to be crazy. That is harsh, but reasonable people settle for the sake of their children at some point.
Your best chance to tell your story is right at the beginning. We will work together for 2 to 3 hours to draft that application to assist the judge with getting into the flow of what the case is about. It is generally written in chronological order, but we don’t want the most important facts to get lost among every minute detail. That document tells the judge, in a Readers’ Digest format, exactly what they need to know about you and your family. That will give you an advantage throughout the whole proceedings. We have to tell that story completely and accurately. It is the source of your consistency and reliability.
MBM: Especially where it concerns the welfare of children, there have been a lot of recent changes to family law in Canada. What do you think all Canadians need to be aware of, first and foremost so that when they come to you, they are not completely unaware of how the courts operate?
Steven McCutcheon: The biggest changes are in language. We’re finally getting rid of the word custody and talking about parenting arrangements and parenting agreements.
"The best interests of the child have been first and foremost for a number of years already. The Federal Liberals are finally trying to codify what the cases have said for years. The best thing that parents can do is to learn how to put aside their own difficulties with each other and focus completely on what is the best solution for their children".
What we do need to focus on now is fixing the process.
I’m optimistic that it is getting better, but until they change the process and streamline it, we are going to have a backlog and a lot of families waiting a long time for the resolutions they are seeking. A lot of court time is taken up with simple or uncontested divorces, for example, that could just be filed with the ministry. The same can be said for property divisions that can be dealt with by an accountant and approved through a ministry office. They shouldn’t have to be processed through the courts. And, what would help us stream-line the process and improve the court system overall would be the use of 21st century technology. We still have a half-day of court time every week dedicated to scheduling appearances before the judge, then if the issue is settled and everyone cancels, the spot does not become available. Electronic systems would enable the efficient use of time and if other countries are doing it, so can we.
MBM: Is that inefficiency one of the reasons why legal fees are so expensive?
Steven McCutcheon: It is one of the reasons, but there are others. I am not here to take every penny out of my clients’ pockets. My fees could be as little as $500, or as much as $50K. We’re providing more “unbundled” or a la carte services because it is so expensive. I have a reputation for being tough and forceful in court, but when you have that reputation you have earned it by over-preparing. The bigger the lawyer, the more easily they crumble, because they can’t possibly remember minute details of 50 to 100 cases at a time. In a way, being smaller and in a smaller community, and a smaller courthouse it is easier to stay on top of your cases. We often know our clients personally or within the community. So, naturally we know more about our clients, their situation and what is important to them.
I will say that I don’t go to court with a loser. I only go when I think I am going to win. I am always better prepared than my opposition and if I don’t think I am going to get what I want, I negotiate. You always get more from negotiating than you will if you lose.
More than one person has run out of other lawyer’s offices $75,000 poorer and then come to us for help and, of course, I have to help them. A lot of lawyers don’t have a concept of what normal working people go through, but I do. I guess I have more life experiences than most lawyers. You only get one chance to build a reputation based on integrity and I want to keep mine.
MBM: If you could give our readers some tips about finding the right lawyer, what would they be?
Steven McCutcheon: Ask your friends who have been through it: who did they use? What did they like or dislike about them? What are they good at? What are you looking to achieve? Is that lawyer good at that? And don’t be fooled by social networks that feature ratings. Most are dominated by people with an axe to grind and no-one has to sign their name! If you are going to a site, look for real names and real people. Did you know that you can actually search court cases, names and lawyers and find out what their actual track record is like? I encourage people who are facing the highly emotional and life changing ordeal of separation to do their homework and hire the best lawyer that they can afford.
Kate Baggott's technology and business journalism has appeared in the Technology Review at MIT, the Globe and Mail, Canada Computes, the Vancouver Sun, and on the Business to Business News Network
Kate is the author of two short story collections.
McCUTCHEON FAMILY LAW PROFESSIONAL SERVICES
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