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DECISIONS, DECISIONS: Choosing a Legal Process to Resolve Your Family Law Matter

Although some paths to resolving family conflicts are commonly less expensive or less stressful than others, every situation is different and individual family dynamics and circumstances should be evaluated before committing to any specific process. For example, mediation can be an efficient and cost-effective way of resolving issues post-separation, but it’s important to be sure of everyone’s willingness to compromise before committing to the process because there isn’t an arbitrator or judge involved who can make a final determination. Here are a couple of questions to ask yourself before deciding which route to take:

  • Are you able to sit down with your former spouse in the same room?

For everything but court, you will need to be comfortable sitting down and communicating with your former spouse. This meeting may take many forms, and in some cases can be brief. If you and your former spouse get along quite well and are behaving reasonably, you may be able to resolve your matter using the kitchen table approach. If you need a bit more help lawyer assisted negotiation, mediation or mediation-arbitration may be the best fit for you.

  • Is your former spouse paying proper child/spousal support at this point?

If you cannot get your spouse to pay proper support through agreement right after separation, a court application for interim support may be necessary. If you have hired a lawyer and they have not been able to get proper support for you through agreement, a court application could secure that for you. Usually after the support order is made, the parties are able to resolve the remaining issues through other non-court processes.

  • Is your former spouse engaging in attempts at resolution, or do they have their “head in the sand”?

If your former spouse is ignoring your attempts to move forward with your separation, sometimes involving a lawyer can provide the push they need to face reality. Sometimes it can be necessary to go a step further and file and serve a court application on your former spouse. This will engage various timelines that require their attention and response. Often once they become involved in the process, other out of court options can be used successfully.

  • Do you have complex financial circumstances, such as numerous corporations, businesses, or out of country properties or investments?

If you have a fairly complicated financial situation, using a neutral financial specialist may be the most efficient use of your time and money. This is a component of collaborative law, but can also be used in other processes if parties agree. The benefit of having one expert is that you are not each paying your own accountant to propose an appropriate division, which saves everyone time and money. 

  • Do you have children? How old are they?

If you have children that are mature enough to express themselves, you may wish to give them the opportunity to provide their input regarding parenting time. The process typically used for this is a “views of the child report”, prepared by an expert who can be retained by consent of both parties or ordered by the court. Child specialist’s in collaborative law can also assist in ensuring the child’s voice is heard. The views of the child are a factor in determining which parenting arrangements are best, but their views are not fully determinant.

  • Do you have children? Is this a high-conflict separation?  

There are many studies that show that reducing tension/conflict between spouses going through separation will greatly benefit their children. Researchers have found it is not the divorce itself that leads to problems for children (such as academic issues, drug/alcohol use, or mental health issues), but the conflict experienced in separation when the parents are fighting. Choosing a less adversarial process can often reduce the stress and conflict that the parents are engaged in, which will in turn help children adjust. It can also be beneficial to hire a divorce coach to help you through the separation and teach you strategies to reduce conflict and put your children first.

  • How much money do you have or want to spend?

Each process has a wide range of costs. A recent BC study assessed the average cost of each process. What they found was that the average cost for a one day mediation without counsel was $1,838, and the average cost with counsel was $7,400. The average cost of a mediation-arbitration without counsel was $6,250, and with counsel was $11,750. Any legal advice sought after mediation or mediation-arbitration would be an additional cost. The average cost of the collaborative process was $11,466. Trials cost on average $7,750 for one day, $23,045 for three days, $39,772 for five days and $84,545 for ten days. It’s important to note that the trial costs included only attendance and preparation for trial, not the initial pleadings, court appearances, discoveries, financial documents etc. All quotes are per party.

  • Do you want control over the outcome of your dispute, or do you feel comfortable with someone making that decision for you and your family?

In negotiation and mediation you and your former spouse remain the decision makers.  In arbitration and court, a third party will make the decision for you.  It’s important to remember that those decision makers will have limited information on which to make the decision, and that they are bound by applicable laws and precedents. Studies show that when parties reach their own agreement, they are more likely to follow through with them.

  • Was there any family violence in the relationship with your former spouse?

Before a mediation or collaborative law can take place, there must be a screening for family violence and power dynamics. While a history of family violence does not prohibit mediation or collaborative law from being used, there are some circumstances where those processes would not be appropriate.

  • Do you have any specific privacy concerns?

Once of the benefits for mediation, arbitration and collaborative law is that the processes are private. In court, usually anyone can attend and observe the proceedings. Oftentimes business owners or families that are well known to their communities choose a private process so that their competitors or the general public will not have access to their private information.

  • Is there a tight timeline for resolving certain issues?

Each process can vary in how long they take, however in almost every circumstance court will take the longest. Sometimes mediation can be quicker than lawyer assisted negotiation or the kitchen table approach, as it gives an opportunity for everyone to be in the room and get down to business. Sometimes if negotiations are progressing slowly a court application can speed things up. A good thing to keep in mind is that relationships take years to build, and they can’t be restructured in a few weeks.

  • Do you have an accurate understanding of the family finances?

If you are attempting to resolve things out of court but your spouse won’t provide you with proper disclosure, you may need to bring a court application. The law requires that both parties provide full financial disclosure no matter which process you choose; however, consequences for non-compliance can only be pursued through court. It’s important to have all the relevant information before you enter into an agreement that involves property division and support.

  • Do you need to protect property?

If there is real estate in your spouse’s sole name, you will probably want to apply to court for a certificate of pending litigation. This warns that a litigation is ongoing as to ownership and deters any potential purchasers or lenders. Similarly, if you are concerned that your spouse is going to sell off assets, you may need to apply to court for an asset restraining order.

  • What kind of relationship with your former spouse do you want to have in the future?

A good thing to keep in mind when going through a separation is what you want future graduations, weddings, and other celebrations to look like for you and your former spouse.  A lengthy, no holds barred court battle with your ex does not lend itself to a comfortable wedding day for your child (or yourself) down the road. The litigation process encourages cross examinations that highlight your worst days, bring up your darkest secrets and are often designed to portray you to be a bad spouse, parent and person generally. It is very difficult for people to bounce back after going through such an emotionally draining and often degrading process. While former spouses may not leave mediation, collaborative law or negotiations as best friends, they typically leave things on a more positive note than if they went to court.

In our opinion, it is best to sit down with a lawyer to discuss the various process options available and have them help you decide which one is the best fit for your situation.

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