Everything begins with education. With clear explanations about your legal rights, obligations and remedies, you are empowered to make better choices with more confidence. I will provide you with information and advice relating to the law as well as your options on the best way to proceed in your particular circumstances, including financial considerations, because there is no such thing as "price is no object".
Once we have determined your likely outcomes, I will negotiate a settlement on your behalf, with an eye to resolving your matter in a fair and cost-effective manner. In the right circumstances, you may tell me to start a court proceeding to make it clear to your partner that you are serious about resolving matters and to move matters forward. This doesn't necessarily mean that your matter will proceed all the way to a trial, but the court process can be a very efficient and cost-effective way to get your partner to disclose the critical information you need to bring your matter to a successful conclusion. As the client, it is ultimately your decision whether to go to court or not, although it is always possible that your partner may have started one before you.
By entering into a cohabitation agreement or marriage agreement in advance, you and your partner can work together to limit the uncertainty, fear and financial and emotional fallout of any future breakdown in your relationship. You can also build in tailor-made clauses to deal with your specific relationship and financial circumstances, including future contingencies, at a much lower cost than going to court later.
Traditionally, there have been only two ways to resolve a family matter: either by agreement with your partner or by court order, but now separating partners can instead enter into a mediation, arbitration or med-arb, which is a combination of the two. You can bring your lawyer to any of these processes if you choose but you are not required to have one.
Mediation is a process presided over by a neutral facilitator which ordinarily results in an agreement on the outstanding issues between you and your partner. Mediations can even work if the two of you can't or don't want to meet face to face. The mediator can work around that if it can't be done another way. You can bring your lawyer or have your lawyer on stand-by to save on your legal fees if you so choose. A successful mediation generally results in a binding written agreement which can be registered in the courts, either written up by a lawyer or by the mediator if the mediator is also a lawyer.
Arbitration is like going to court without going to court, and it can be a shorter and more cost-effective process than a court trial, depending on what you, your partner and the arbitrator agree on. The requirements to become an arbitrator in BC as mandated by the Law Society of British Columbia are extensive. At the beginning of the arbitration, you and your partner must consent in writing with the arbitrator that you will be bound by the result. At the end of the process, the arbitrator will file a written decision with reasons in the court on behalf of you and your partner. Just like in court, you can appeal the arbitrator's decision in certain circumstances.
Med-Arb is a combination of mediation and arbitration, and you and your partner can even start out mediating and decide later if you want to proceed to arbitration for any issues you weren't able to resolve in the mediation.
While sometimes you might hear a lawyer say that he or she is a "small c" collaborative lawyer, this is not what is meant by Collaborative Law. Lawyers aren't collaborative lawyers just because they say so. They have to be properly trained to do it. If your lawyer says he or she is collaborative, make sure to ask what specific training they have in Collaborative Law.
If you want to resolve your issues collaboratively, each of you will retain a collaborative lawyer and all four of you will sign a special agreement that you will all work together without going to court. Your lawyer represents your interests, but if either lawyer has a bright idea that would help both of you resolve your issues, he or she isn't prevented from suggesting it.
Collaborative lawyers sometimes suggest that the two of you involve non-legal professionals such as financial neutrals, divorce coaches or professionals who deal with children because they have special expertise in their own areas and tend to cost less than the lawyers. This can lower the cost of the process for both of you overall. This also allows the lawyers to concentrate on lawyering, which is better for you financially.
Nobody wants to go to court. It is a costly and lengthy process, but sometimes there isn't a better option, depending on your individual circumstances, such as when your partner will not agree with you on any matter, or when your partner is not forthcoming with information necessary to resolve your matter. Sometimes you may need emergency help, such as spousal support or an order to prevent your partner from leaving the country with the children.
Starting a court action doesn't mean that you will automatically go to a trial, but it is likely that you will attend a Judicial Case Conference, which is a mediation in the court presided over by a judge, before you will be allowed to go further in the court process. Of course, if there is an emergency, exceptions will be made.
The court's first priority is your children and their well-being. Sometimes, a court will order that the two of you hire a parenting coordinator, at your cost, to help you sort out your future parenting conflicts for a set period of time, normally six months to two years. If you are ordered to do this, the parenting coordinator acts as a mediator-arbitrator for you and reports back to the court if you don't live up to the terms of the order.
Ultimately, the parenting coordinator will work with you and your former partner until the two of you are able to parent together without significant disputes, or otherwise until the order expires without being replaced.
Tools in Your Toolbox
Copyright 2019 Janet L. Clark