Should you consider collaborative family law in your Ontario divorce?
Collaboration is an alternative to traditional divorce that focuses on cooperation, creativity, respect and avoiding the courtroom.
Most people do not want an adversarial process that lands them in court arguing over the minutiae of their lives, never mind all the very big issues such as custody, access, support, sale of the home, other real estate, or pensions.
Many cases that start out with arguing, bickering and lawyers pitted against each other, even if they do not end up going to court, would be better served by what is known as a collaborative process.
The collaborative family law process started in the Midwest of the United States and spread to Canada and has now spread around the world as a resolution mechanism.
Collaborative family law is based on certain principles. Specially trained lawyers who have been trained not to argue or fight but to use settlement principles and mediation strategies to reach resolution are hired by each side, so that each side is being represented by their own lawyer so their interests are looked after.
In addition, to the family law lawyers, the parties may also have a family professional or social worker/psychologist who is assisting them with custody issues and offering counselling to the parties (or their children) as they go through the process.
They may well also have a business valuator who is also collaboratively trained to value any businesses or income of one or both of the parties if they are self-employed and/or they receive some cash income or write off considerable amounts of their expenses.
They may also have a financial professional, other than for purposes of a business or income valuation that assists the parties or one of the parties, with budgeting and maximizing the investment value of their share of the family wealth.
The process involves the parties and also their lawyers and other professionals signing a Collaborative Participation Agreement in which they undertake not to go to court, to provide open and fulsome disclosure. If they reach an impasse and cannot, in some way, mediate out their impasse by utilizing a mediator, that the lawyers are forced to withdraw, and the parties find litigation counsel. The agreement specifically requires:
- Full disclosure
- No hiding of assets
- Keeping the family resources on an even keel as much as possible during the process
- Sharing the family income
- Providing finance and a health care plan (if available) for both of the parties and especially the children
- Allowing for the bringing in of the financial professionals and the family professional or even other professionals who also sign the agreement and
- It mandates respectful and dignified behaviour throughout the process and because the parties can have joint experts such as the financial professionals, whether it is the income valuator or the business valuator or someone helping with budgeting and financial statements, then there is not a duplication of process and that helps, as much as possible, to keep the expenses to a minimum
A collaborative process, while it takes place in the shadow of the Statutes and Case law with one eye on them, also allows for very creative settlements.
For example, the parties both love the cottage but one of the parties is choosing to keep it: there is nothing forbidding the other party from bargaining to use the cottage for a number of weeks per season with the full cooperation of the party who is keeping it, if this can be negotiated.
Collaborative negotiations allow for the children to be spared the stress of a high conflict divorce or the negativity that results as parties’ stress levels get higher and they become angrier and the children hear bickering and arguing or become involved in the arguments themselves.
The collaborative process also trains the parties in communication skills so that they can function better as co-parents to their children go-forward. The cost factor to a collaborative process is much less than that of an adversarial process with drawn out litigation and time wasted often in angry exchanges of correspondence that do not bring any result.
However, not all cases are suitable for a collaborative process. If there has been spousal battering or abuse and I don’t mean harsh words or someone getting upset, I am talking about spousal abuse, whether physical or emotional, or if there has been a hiding of assets or actions taken to increase the debt that will be borne by the other party by a significant degree for purposes of a bargaining advantage, then the matter is not suitable for a collaborative process.
Collaborative family law, however, most often results in a settlement where both of the parties are, on the whole, quite pleased with the resolution they have reached. No one is absolutely happy. This may seem to be a very odd statement, but settlements that are good tend to be where no one is absolutely delighted, and no one is completely upset. A true settlement is often reached with both of the parties feeling that they won some and lost some and negotiated well and can live with the result and move forward.
Our office is trained in the collaborative family process. We would be happy to assist you as you move through a collaborative family law process as part of a Collaborative Participation Agreement.