WHAT TO EXPECT WHEN YOU’RE SEPARATING

Q
I would prefer not to go to court, do I have to?
AThere is no requirement that separating people use the court system to resolve their dispute. What I will often tell my clients is that most family disputes can be resolved through alternative dispute resolution methods, either in parallel to a court proceeding, or without ever commencing a court action.

Even if you and your spouse are not amicable, it may still be possible to mediate. A skilled mediator can help both parties to see the benefits of a peaceful resolution and often problems have many possible solutions. Mediators and family lawyers are also required to assess for the presence of family violence, and can put processes in place to ensure that both parties can mediate from a position of equality, even if violence is an issue.

The courts are a tool, and mediation is a part of the court process as well. Often in my cases I have used litigation to resolve those particularly thorny matters where mediation has failed, while the majority of issues are resolved without the need for a trial. A flexible, responsive approach where the parties are always negotiating, but where necessary a Judge is consulted to break the log jam where mediation isn’t working, has had a high degree of success in my practice.

Finally, however, it’s important to keep in mind that each party has the right to utilize the courts, even if one party doesn’t wish to. If your spouse wishes to proceed with litigation and is unwilling to explore alternative dispute resolution options, it’s important to engage fully with the process, and consult a lawyer about the best way to protect yourself.

Q
If I or my spouse starts a court proceeding, can I still mediate?
AAbsolutely! Mediation is a necessary and required part of the court process. In addition, family court Judges are generally highly responsive to any indication by either party that they are amenable to dispute resolution processes. Most family cases, even those where trials are scheduled, are ultimately resolved through negotiation and mediation rather than by a Judge.

If you feel you need the assistance of a Judge to resolve a particular issue, that does not mean that you have foreclosed the ability to mediate other issues.

Q
What should I expect if I mediate?
AMediation is one common form of alternative dispute resolution utilized by separating families. The advantage of mediation is that the parties are able to craft their own agreements which take their own unique circumstances into account. They are not necessarily constrained by the dictates of family law legislation, and the resolution is arrived at by the parties themselves, rather than a Judge.

A good mediator will be a neutral facilitator who will assist the parties to come to their own agreements. They will meet with and talk to each party to understand their particular goals and needs. They are also required to screen for the presence of family violence.

I recommend that each of you retain your own lawyer, even when engaging in a mediation process, and in my experience most good professional mediators agree with this policy. A mediator is not able to give legal advice to the parties, though they can give legal information. When both parties have a lawyer, they are able to get legal advice throughout the mediation process, which ensures that you each fully understand the legal consequences before you sign. Agreements prepared with the benefit of good legal advice are far stronger agreements, in my experience.

You may have just one mediation session or several. At the end of the process, you may have a Minutes of Settlement which sets out the agreements that were made, which can then be translated into a consent court order, or a separation agreement by a lawyer. If your mediator is also a lawyer, they may be able to draft the agreement in its final form as well.

Beware of non-lawyer mediators who claim to be able to draft agreements or who discourage you from retaining lawyers. Only lawyer mediators are permitted to draft agreements in BC, and you have the right to have an advocate with you when you’re mediating!

The only exception to the above warning is Family Justice Services, which is a free mediation service offered by the BC government. FJS mediators are skilled and knowledgable, but have restrictions about what kinds of issues they are allowed to deal with.

Q
How do I choose between the Provincial and Supreme courts?
AIf you plan to start a court proceeding, you will first need to determine which court is the right one for you. There are significant differences between the Provincial and Supreme courts which should be considered before making a decision:

The Provincial Court:

  • Has no filing fees, making litigation cheaper;
  • Has simplified processes and easier documents, making it easier for people to represent themselves;
  • Is limited in which issues may be litigated – the Provincial Court cannot divide property or grant a Divorce;
  • Is more limited in its options for enforcement of orders, though some enforcement options are available; and,
  • Is often less flexible with regard to scheduling court dates.

The Supreme Court

  • Has significant filing fees;
  • Has more complex documents and strict processes, making it sometimes very difficult for people to navigate without the assistance of an experienced lawyer;
  • Can address a wide variety of legal issues, essentially without limit;
  • Has far more robust options to reduce litigation abuse and to address breaches of orders, such as contempt proceedings and costs; and,
  • Is fairly flexible in scheduling interlocutory applications, such that the litigants can pick the date they want.

Both have:

  • Highly skilled and motivated Judges who are generally fair, reasonable, and want to help families to achieve a good long-term outcome;
  • Requirements to engage in mediation as part of the process; and,
  • Lengthy wait times for certain types of court processes, especially trials.

There is no one option that will serve all families. It may even be appropriate to engage in a blended approach, dealing with some issues in each court, or outside of the court process. I recommend that you speak to a lawyer about your particular family and financial circumstances before making an application to either court.

HOW WE CAN HELP

Q
If I go to court, am I required to retain a lawyer?
AYou are not required to retain a lawyer to represent you in court, and many people choose to represent themselves. Sometimes, this is even the best option, and I have been known to recommend to people that they go it alone rather than having a lawyer.

In most cases, though, legal advice is extremely useful. As there is duty counsel at each courthouse in British Columbia on most family court days, litigants who don’t have lawyers of their own are able to obtain legal advice for free if they need it. As such, you don’t need to retain a lawyer to get legal advice, though having one lawyer who is familiar with your personal circumstances is very helpful.

Many people are simply not able to afford to retain a lawyer to assist them from the time of their initial separation to the completion of a trial, but it can be helpful and less expensive to have someone help you to draft documents or provide ongoing advice without attending court. If you’re interested in exploring lower-cost options with me, let me know during your consultation.

Q
Do my spouse and I need separate lawyers?
AIn almost all cases, the answer is yes.

It may seem that if the two of you are amicable that there is no need for both of you to go to the expense of a lawyer, but I am not allowed to place myself in a potential conflict of interest by giving legal advice to both sides in a potential family dispute. Even if the two of you seem to be in agreement, there may be situations that come about that may give rise to a dispute of some kind. If I were to act for both of you, then the moment a dispute arose, I could no longer act for either of you. I feel it’s in the best interest of my clients that we not take that risk.

Of course, hiring a lawyer is a personal decision. Though I can only act for one of you, the other party might choose not to hire a lawyer for themselves. In that case, I strongly advise that that party seek their own independent legal advice, such as by consulting duty counsel.

Q
What will I get at a consultation?
AInstead of offering free consultations, I offer a full hour and a half of legal advice at a discounted rate. At a consultation, I will collect enough background information to be able to give you advice that is tailored to your unique circumstances. I will explain the court process, and the law, and we will strategize together.

Sometimes, I am able to draft simple documents in the context of a consultation, but generally not. My focus is to gather the information needed to fully advise you and help you to determine the steps that will give you the best results going forward. Documents will generally be drafted between meetings, after the signing of a retainer.

My goal with each person who attends a consultation with me is to give them the tools to be able to move forward into the next steps of their separation with confidence and make some well-informed decisions even if they choose not to retain me.

Q
My spouse and I agree, can you witness my signature on the separation agreement during my consultation?
AIt’s not possible for me to gather enough information in the context of a consultation to be confident that your agreement is in your best interest and to definitively advise you whether or not to sign it. If you have negotiated a separation agreement with your spouse, I am happy to give you some advice about it. If you wish for me to sign it with you, then we can discuss in the consultation what additional information I will need to review in order to fully and confidently advise you. Once I have had an opportunity to review the additional information and am satisfied that I have a full grasp of your own unique circumstances and issues, then I am happy to help you complete the agreement and witness your signature.
Q
Do you offer limited retainers?
ASometimes people are not able to afford a lawyer who will provide them with full services, but need a lawyer’s assistance to draft a letter, prepare a separation agreement, or other documents. I am happy to offer services on an a-la-carte basis within your budget. In the circumstances of a limited retainer, I generally don’t attend court (though that depends on our particular agreement and your budge) or correspond directly with the other party or opposing counsel. This helps allow us to keep the costs under control.

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