Canada: The Family Law Process: Highway To Hell Or Road To Resolution?

Last Updated: April 17 2014
Article by William Doran

When a relationship breaks down and separation between spouses is imminent, an array of emotions and counterproductive thoughts drive some people to do things they later regret. Sorrow, remorse, jealousy, anger, denial, confusion, shame, despair and fear are all natural responses when security and well-being are threatened. Unfortunately, these responses can lead to impaired judgment at a time when rational decision making is critical. At this stage a "designated driver" is often needed to steer decision making toward the appropriate avenue, allowing those impaired by separation to travel safely and efficiently toward a healthy resolution of their family law issues.

Heath care professionals have a vital role to play when referring patients for legal advice. They have an opportunity to steer their patients away from an adversarial system and toward a family law process that will focus on solutions and wellness. The primary objective of this article is to provide information to health care professionals and their patients about the potential hazards of family court and the alternative processes to dispute resolution. So what is the best road to resolution and wellness?

When a family is in crisis, dealing with the legal issues can be overwhelming. Disagreements in regard to children and financial matters have far too many people hopping in their cars and driving to court. Frequently, this is a reaction rather than a carefully considered option. It is critical that proper consideration be given to alternative dispute resolution avenues prior to a trip to the courthouse. Consider the comments of family court judge, Mr. Justice Harvey Brownstone:

Most separated couples have major disagreements about financial matters or the custody of their children, and still the great majority do not go to court. I believe this is because they understand that family court should be the option of last resort rather than the first place to run to, which is the approach too many people take.1

Exposing families to the adversarial court process has been compared to pouring fuel on the fire. All of the emotions referred to above become inflamed. Rather than moving collaboratively toward solutions, spouses end up farther apart as they formulate positions on the issues that they will argue in the court. Consider the following scenario which occurs shortly after a court action has started.

One spouse brings a motion seeking sole custody of the children. Procedure requires the spouse to provide evidence as to why the court should grant them sole custody. This is done by swearing an affidavit that sets out the facts relevant to the legal issue of custody. This affidavit is sworn to be true in the presence of a lawyer or a Commissioner of Oaths and is served on the other spouse and filed in the court file (which is a public record). All too often this affidavit amounts to a character assassination of the other spouse. This character assassination is usually reciprocated and is sometimes referred to as an "affidavit war", especially when numerous affidavits from friends and family follow. These affidavits are likened to a "snapshot" of every mistake, short coming and character flaw that each spouse can remember about the other through their travels, all contained in one document. The affidavits are then read by a judge who will then hear verbal arguments by, either the spouses themselves (if self-represented), or the lawyers that they have retained to represent them. This is often done in open court in the presence of other lawyers and members of the public. The judge, whose formal training is in the law, will likely have no background or experience in child development, child psychology, or the dynamics of the changing family life cycle.2 It follows that the decision is often upsetting to at least one of the parties and frequently both. At this point in the journey, hurt and bitterness take control of the proverbial steering wheel, driving the parties further down what feels like, the highway to hell. Lost and disillusioned, many will then ask: was there not another way? Is it too late to turn around?

While family court should be the last option for the majority of the population, there are some people who will need the court's protection and assistance in resolving family law disputes. Victims of abuse may need a court order to provide security and protection from further abuse. Those who struggle with mental health issues, power imbalances in their relationship, and/or immaturity, may not be suitable candidates for alternative processes, leaving court as the only option. Unfortunately, the court process can take years before a case is completed. It is a complicated process and can be very expensive. As with all processes, people must conduct a cost/benefit analysis in making their decision.

Below are the alternative dispute processes available in finding a peaceful resolution to family law disputes. Each one should be reviewed with a family law lawyer to find out which process is suitable under the circumstances.

1. Negotiation of a Separation Agreement (Domestic Contract) with the Assistance of Legal Counsel

The objective in negotiating a separation agreement is to arrive at terms that will address the legal issues arising from the breakdown in the relationship. This process will involve retaining lawyers that will facilitate the negotiations and will provide independent legal advice to their respective clients. After exchanging financial information, a four-way meeting may be held to narrow any unresolved issues. If successful, the parties will come away with a signed separation agreement that will be binding on both parties and will govern each party's rights and obligations on such issues as: parenting, child support, spousal support, division of property, responsibility for debts and divorce. A "principled approach" to negotiation is preferential to positional bargaining. Principled negotiation focuses on interests, not positions. This approach to negotiation attempts to generate a variety of possible solutions rather than creating opposing positions on the issues. Not all family law lawyers are trained in principled negotiation. Prior to retaining a lawyer to assist with the negotiation of a separation agreement, people should be encouraged to find out if the lawyer has any formal training in principled negotiation. All collaborative lawyers have been trained in principled negotiation.

2. Collaborative Family Law Process

The objective in the collaborative family law process continues to be the negotiation of a separation agreement. The key difference is both parties and their lawyers sign a contract that requires both lawyers to withdraw their services if a settlement cannot be reached. This means that neither lawyer can provide representation if the matter proceeds to court. It follows that the parties and the lawyers work hard toward a collaborative settlement. Collaboratively trained family law lawyers are committed to: a. reducing conflict in families; b. promoting positive and effective communication between spouses; c. focusing on solutions rather than positions; d. transparency in regard to complete financial disclosure; e. achieving fair and equitable results; f. reviewing rights and obligations according to law; g. representing clients in a collaborative environment; and h. making the process cost-effective.

Collaborative family law may (or may not) involve other professionals such as counsellors and financial advisors who provide expertise in their respective fields. These professionals are also trained to work in the collaborative process and will work alongside the parties and their lawyers. The involvement of these professionals will depend on the complexity of the issues and whether or not the parties can afford these additional services. The collaborative process usually involves a series of meetings with the parties and the lawyers with a view to identifying interests and finding solutions. The parties may break off and meet with the financial advisor, either together or separately, to work on financial disclosure. They may also have separate meetings with the counsellor to address psychosocial issues that may be relevant to advancing the matter toward settlement. The collaborative process is successful when the parties commit to finding solutions rather than creating conflict and ends with a signed separation agreement.

3. Mediation

The objective of the mediation process is for a neutral person to assist the parties in arriving at their own settlement. It follows that the ultimate decision making is left in the hands of the parties. The neutral person should have formal training as a family law mediator, which is usually confirmed by certification. The mediator must be neutral on all the issues and cannot provide legal advice to either party. In most cases people attend mediation without lawyers. It follows that each party will need to retain their own lawyer to provide independent legal advice on the issues which are subject to the mediation. If settlement is achieved, most mediators will draft a separation agreement that each party will take to their respective lawyers for independent legal advice. Each lawyer will then review the separation agreement with their client to make sure that the terms therein are clearly understood and to provide legal advice on the issues. If the parties are in agreement, the separation agreement is then signed by each party and witnessed. The lawyer usually signs a certificate of independent legal advice confirming their client understood what they were signing and were not under any undue influence or pressure to sign it. When retaining lawyers to provide independent legal advice, strong consideration should be given to retaining lawyers trained in the "principled approach" so not to frustrate the settlement efforts of the parties and the mediator.

Mediation is a voluntary process that is often successful when two mature adults commit to resolving their differences by focusing on solutions rather than legal positions. The parties will sign a Mediation Agreement, which will usually state that everything discussed in mediation cannot be used in court in the event that mediation is unsuccessful. This could mean that the parties are starting from ground zero if the matter does proceed to court.

Like with other processes, mediation is not for everyone. Victims of abuse are often not good candidates for mediation. Most mediators will screen each party separately with a view to determining if mediation is a suitable process. If a power imbalance in the relationship exists, the involvement of lawyers in the mediation process may address this concern.

4. Mediation/Arbitration

The objective of mediation/arbitration is to provide a process for settlement, but also for adjudication in the event that mediation is not successful. In other words, any issue that is not settled during the mediation phase will then be ruled upon during the arbitration process, provided both parties have waived section 35 of the Arbitration Act (the provision that prevents a mediator from subsequently acting as an arbitrator). The arbitration process is similar to court, in that, the arbitrator, after hearing all the evidence, will make a binding decision on the issues according to the rules of evidence and law. It follows that each party should have a lawyer for the arbitration phase.

The arbitrator's decision is binding and can be enforced under section 59.8 (5) (a) of the Family Law Act. Prior to the commencement of the process, the parties will sign a Mediation Arbitration Agreement. In that Agreement, they will waive their right to litigate their issues in court. What is attractive about the mediation/arbitration process is that settlement or a final decision will be achieved in a relatively short period of time, especially when compared to the court process (which can take years in some cases). Furthermore, most cases settle during the mediation phase. The knowledge that a binding decision will be rendered if mediation fails motivates most parties to settle. Mediation/arbitration is a voluntary process that requires both parties to enter into a Mediation Arbitration contract. Unlike mediation alone, once a Mediation Arbitration Agreement is signed, both parties are bound to the process and waive their rights to litigate in court. This may be the best process if there is a risk that one party has an interest in delaying proceedings. Again, having lawyers trained in the "principled approach" will allow the parties a greater opportunity to find resolution during the mediation phase.

Finding the road to a healthy resolution of family law issues requires professional guidance. Family breakdown can be a devastating, debilitating event that has substantial implications for families and society as a whole. It is therefore critical that separating spouses be guided, as much as possible, away from the adversarial court process and toward an alternative dispute resolution process that will focus on harnessing negative emotions that get in the way of solution focused thinking. Consider the potential fallout when healthy processes are overlooked and court becomes the first course of action:

a) Employment: missed work days, a leave of absence, termination of employment;

b) Education: missed school days, diminished academic performance, disruption when children change schools;

c) Health: anxiety, depression, physical illness, suicide;

d) Judicial System: criminal charges due to assaults and/or uttering threats, overwhelmed and underfunded family court system;

e) Economics: legal costs; medical costs; diminished net worth; diminished spending power, consumer proposals, bankruptcy.

It follows that early intervention is crucial if this fallout is to be avoided or at least minimized. Health care providers have an opportunity to provide a valuable service by referring their patients to lawyers who have been trained in principled negotiation and are mindful of how destructive court can be. Avoid the highway to hell.

Footnotes

1 Mr. Justice Harvey Brownstone, Tug of War – A Judges Verdict on Separation, Custody Battles and the Bitter Realities of Family Court (Toronto: ECW Press 2009) at 11.

2 Ibid., at 1.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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