In 2021, the Divorce Act changed and created new duties for you and your lawyer.
Your duties
- Best interests of children: Parents are required to act in a manner that is consistent with the best interests of their child.
- Family dispute resolution process: Instead of going directly to court, you have a duty to try to resolve your case through a family dispute resolution process “to the extent that it is appropriate to do so”.
- Protect children from conflict: Parents are required to protect any child from conflict arising from a court case.
- Provide information and comply with court orders: You must provide complete, accurate and up-to-date information and comply with court orders.
Your lawyer’s duties
- Reconciliation: In appropriate cases, a lawyer must discuss the possibility of reconciliation with you and provide information about services such as counselling.
- Family dispute resolution process: A lawyer must encourage you to try to resolve your case without going to court through a family dispute resolution process “unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so”.
- Family justice services: A lawyer must inform you of family justice services that might assist in resolving the case and complying with court orders.
What is a “family dispute resolution process”?
This includes negotiation, mediation and collaborative law.
Lawyer-to-lawyer negotiations
There are two types:
- Adversarial negotiations: This is old-school tug of war negotiations. Each party focuses on trying to get the biggest piece of the pie.
- Co-operative or small “c” collaborative negotiations: Lawyers help clients reach a settlement through mutual compromise and constructive negotiations. This is different from the Collaborative Law Process explained below.
Mediation
You and your spouse work with a neutral mediator to help reach a resolution.
Collaborative law
Collaborative law means that you and your spouse retain collaborative lawyers who are trained in conflict resolution and collaborative negotiation theory. Other neutral professionals are often utilized to enhance the possibility for resolution and to reduce legal costs. I explain collaborative law more in another post.
Reasons to avoid court
Court is:
- Adversarial: It sets one person against the other.
- Complicated: Court processes are complex and court rules must be followed very carefully.
- Expensive: Legal fees are high because instead of your lawyer focusing on resolution, you are paying your lawyer to prepare court documents, review the other party’s court documents, and prepare for and attend court dates.
- Lengthy: There are lengthy delays between court dates, meaning your case will drag on and on. This is not healthy for the people involved, especially children.
- Stressful: Personal relationships become even more strained. Instead of focusing on moving forward with your life, you have a court proceeding hanging over your head. Children are impacted by the level of conflict between parents and court heightens this conflict.
Court may be necessary
In some cases, a court case may be required. Examples include family violence, protection of children and urgent financial issues to name a few.
Consult a lawyer to provide you with legal advice about how to best approach the resolution of your case. Let’s schedule a consultation.