Family law New collaborative approach makes for healthier families

THE TIMES NOVEMBER 22, 2012

In one of my recent articles [Trends continuing to grow in family dispute resolution, Oct. 25, TIMES], we looked at the various Alternative Dispute Resolution (ADR) options for family law matters.

With the new Family Law Act (FLA) coming into effect in early 2013 and placing a new emphasis on out of court settlements, family law lawyers are now required to shift into a different gear for handling these matters.

In this final article in a three-part series, let’s explore the benefits of the collaborative law approach.

This model depends on good-faith negotiations, the sharing of confidential information, and a commitment by lawyers and law firms to withdraw should negotiations fail.

It is a very effective means to dealing with family disputes.

Both parties should select lawyers who practise collaborative law, or insist that both lawyers agree to make every effort to reach a fair-negotiated settlement.

Working together, these lawyers will assess the parties’ legal and emotional needs and work cooperatively to find a fair settlement for their clients.

The process is multi-disciplinary, thereby allowing for the inclusion of other professionals such as child/educational psychologists, family counsellors, divorce counsellors, life coaches, and other relevant advisers.

This team guides the parties, and any children involved, through the separation and divorce process.

The goal is to promote and support healthy, productive, well-functioning post-divorce families through immediate life changes and provide a workable platform for the future.

Success requires a commitment by all parties, clients and lawyers, to reach a fair resolution outside of the court system.

If a resolution cannot be achieved, then both parties must seek alternative counsel to represent them.

Instead of exchanging adversarial court pleadings, lawyers will correspond with each other in a collegial and cooperative manner, which often includes a four-way, round-table meeting.

Each party can discuss issues privately with their lawyers in another room before returning to the table to resume negotiations.

Another important aspect of the new act has far reaching implications for property division and debt allocations for all couples.

It brings common-law relationships squarely in line with those of married couples. In British Columbia, same-sex marriages are treated in the same way as heterosexual marriages.

It will now be presumed that property owned by the parties is “family property” to be shared equally. Similarly, any debt that has been incurred for a family purpose will be shared equally.

Accordingly, those already in, or intending to enter into common-law relationships, are strongly advised to record their current and future intentions in a co-habitation agreement.

Similarly, parties may enter into marriage agreements prior to their weddings.

These agreements can address future intentions for pensions, RRSPs, spousal support, and payment of child support for stepchildren in the event of the breakup of the relationship. It may also identify “excluded property.”

The act requires parties entering into such agreements to make a full, frank and honest disclosure and to agree on issues that are in the best interests of any children.

If these criteria are met, the courts will uphold your agreement and will strictly bind the parties and will only set aside agreements if the terms prove to be “significantly unfair.”

Avoid family conflict and consider preparing a carefully drafted agreement, including a clause that allows the parties to use ADR in the event of a dispute.

– This is the final part of a three-part series.

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