Alternative dispute resolution (“ADR”) is becoming the primary way to resolve family law disputes for a lot of couples. While there are some situations where going to court and having a judge decide on the matter is necessary, many couples can resolve family law disputes without going to court. An increasingly popular form of ADR is Collaborative Family Law. This is a newer form of resolution but is rapidly becoming the go-to method for those seeking a more amicable resolution. This week, we look at what Collaborative Family Law is, how it works and why couples are using this option.
What is Collaborative Family Law?
Collaborative Family Law involves several parties working together to resolve a variety of issues following the breakdown of a relationship.
Normally, couples would have lawyers (with each spouse having their own representation), and in some cases, child advocates may also become involved. In Collaborative Family Law, in addition to each party having their own lawyer, there are also other professionals who are there to help the couple and the lawyers come to a workable agreement that benefits everyone, including children. What type of professional will become involved will vary depending on what is needed to finalize all matters stemming from a separation. Some examples of individuals who may become involved include:
- Financial advisors;
- Social workers;
- Counsellors; and
- Child specialists.
Collaborative Family Law is exactly as its name suggests: it’s a collaborative process between all parties involved. There are groups in Ontario that help couples through Collaborative Family Law. There are associations like the Collaborative Practice (Durham Region), and the Ontario Collaborative Law Federation. These groups have resources, including seminars, that help coach professionals on how to be a collaborative professional, and for people who are seeking to use a collaborative process to resolve their disputes.
How it Works
If you and your partner decide to participate in the Collaborative Family Law process, you both must ensure that both of your lawyers are familiar with, and have experience in, the process. Not all lawyers are involved in Collaborative Family Law. The process is also entirely voluntary: no one, not even your former partner, can force you to participate, and, even if you do participate, no one can make you agree to the final outcome.
Once appropriate lawyers have been found for each spouse, the other professionals who will be needed will have to be retained. Unlike the lawyers involved, you and your partner can share the resources of these professionals and each spouse does not have to have an independent professional helping them. All parties will sign a “Participation Agreement” which requires that all parties act in good faith throughout the process. The agreement also has a provision that ensures that you will not go to court while the Collaborative Family Law process is ongoing.
If you and your partner are unable to come to an agreement, you may end up having to go to court to come to a resolution (or you may try another ADR method). If one of the parties decides to go to court or try another form of ADR, both lawyers must resign from the case. This is part of the provision in the Participation Agreement that was mentioned earlier. It provides the parties and the lawyers with further incentive to resolve the issues and come to an agreement. In essence, if you decide to go to court, you are starting from square one.
Why People Choose Collaborative Family Law
When a relationship has broken down, it can be very hard on both parties. For some, they just want it over and not drawn out. One of the biggest drawbacks of going through the court system is that it drags out the process. There is a constant a backlog of files in the courts, and it makes it difficult to expedite resolutions. Another major drawback of going to court is the costs. Going to court is very expensive, not just because of the lawyer fees (if you choose to have a lawyer) but also because of the costs to file documents, obtain documents, parking, taking time off of work to go to court, and so on. Collaborative Family Law can help couples save time and money.
The length of time it will take to resolve a matter through Collaborative Family Law will depend on the parties involved and therefore the couple has some control over how long it will all take. In addition, while there are still lawyer fees in the process, these fees are lesser overall and will be lower as the process is likely to be much shorter than litigation in court.
Couples often choose Collaborative Family Law because it allows them to have a voice and discuss things thoroughly without the formalities and drawn out procedures inherent in going to court. It allows them to work together to come to an agreement that works best for their family with the assistance of other parties whose interest is helping them resolve any disputes. Couples are also able to keep things more private by going this route. In court, once a motion is granted, or a trial concluded, the matter (unless there is a publication ban) will become public record. In contrast, in Collaborative Family Law, there is no publication of the details of your matter anywhere.
While Collaborative Family Law sounds great, there are naturally some negative sides to it. First, if you do not come to a resolution or agreement, you could end up going to court. In such a case, you would have to find a new lawyer and start all over again. This can be very draining for someone, both emotionally and financially. Second, the agreement you and your spouse come to is not binding, like a court judgment would be. If you sign it and agree to it, then, of course, you should follow through. However, if there is a dispute about the agreement down the road, then you could end up in court because there is no rule or way to enforce the agreement.
Separating is often a difficult and stressful time in a person’s life, and going to court may increase that stress substantially. At Borden Family Law, we understand that the breakdown of a relationship is difficult, no matter what type of relationship it is. We know that working together can sometimes be the best route for a couple. We have the experience and knowledge necessary to help you and your spouse come to arrangements that are agreeable for both of you, without having to step foot into a courtroom. Call us at 905-597-6090, or contact us online. Ask about our flat fees and Collaborative Lawyer services.