By Audra Bayer
A legal cultural shift that began in British Columbia as a result of The Family Law Act coming into force on March 18, 2013. This shift is a direct result of The Family Law Act requiring parties and lawyers to use alternative dispute resolution processes in family law matters. Part and parcel to this however is our obligation to screen for family violence and to design a process that is appropriate, safe and effective.
MANDATED OBLIGATION TO GUIDE, EDUCATE AND EMPOWER FAMILY LAW CLIENTS THROUGH ALTERNATIVE DISPUTE RESOLUTION
Part 4 of the Act is a clear direction to family alternative dispute resolution practitioners to educate themselves and their clients with respect to cooperative and collaborative approaches to resolving family law disputes. The reality in family law is that most cases do and should settle and that families and in particular with children deserve an approach that will “do no harm” which ought to be the credo of every lawyer involved in the resolution of family disputes.
The purposes of Part 4 of the Family Law Act are:
- To ensure that parties to a family dispute are educated as to the various methods available to resolve the dispute. I would respectfully submit that our obligation goes far beyond education and that in fact as family dispute resolution professionals we ought to do whatever we can to empower our clients in these processes and we can do that by providing legal information; information about resources in the community; making referrals to other professionals such as psychologists, counsellors, financial planners and accountants, drafting correspondence and materials in plain language, taking the time to walk our clients through processes, materials and the law to ensure that they are fully informed and have a good understanding of how these dynamics may affect the outcome of their matter;
- To encourage parties in a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to court;
- To encourage parents and guardians to:
- Resolve conflict other than through court intervention. I provide each client who attends a consultation with me with a document called “Choices” which provides an explanation of the different processes for dispute resolution available to them both outside the litigation process and during litigation and also defines Family Violence as this is set out in the Act and underscores the importance of considering the impact and effect of family violence and the safety of the client and the client’s family members in choosing which process may be appropriate;
- Create parenting arrangements respecting contact with a child that is in the best interests of the child.
When deciding what process is best for you, consider and speak to your lawyer about:
- Conflict: What does the conflict look like when it takes place? What have you learned from the conflict with your former partner? How does this impact your children, your mental health, your ability to process and communicate? What resources have you accessed or educated yourself about to assist you in dealing with conflict when it occurs?
- Communication: What does communication with your former spouse look like? What tools do you use to help establish boundaries and to support respectful communication? What is your communication style teaching your children about relationship, respect, trust, and resolving conflict?
- What things empower or disempower you in communication and negotiation and how can your lawyer and others educate and empower you with respect to effective communication and negotiation?
- Complexity of financial matters and what will you be looking for in disclosure – are there disclosure issues already? Are you concerned about hidden income or assets? Do you require an education with respect to budgets and finances generally? Will you need the advice of an accountant or financial planner? Do you require an education as to corporate finances if there are corporate interests?
- Complexity of parenting issues – what is parenting history; what are differences in parenting philosophies? Has there been Ministry involvement? Are there collaterals who contribute to conflict or who can assist with the facilitation of dialogue through conflict; etc.
- Are there any health concerns including mental health issues and capacity to process or understand?
- Are there any substance misuse issues and if so, what health steps are being taken to heal and address any concerns that may impact the parenting arrangements?
At FH&P, we have lawyers who are trained and certified as mediators, arbitrators, collaborative law practitioners and all of our lawyers are skilled negotiators who have you and your family’s best interests at heart. We believe in education, guidance and empowerment in these skills and in your negotiations and litigation such that you can move forward with your life in a positive and constructive way.
If you need a family legal team on your side, call Audra Bayer. She can provide litigation support mediation and collaborative law services.
