People who are preparing to marry or those who are already married in British Columbia may want to consider completing an agreement that governs how any possible separation or divorce will be handled. Such agreements may be helpful in preventing litigation while providing a fair settlement for both spouses in the event of a marital breakdown.
Without an agreement, such things as the division of assets, spousal support and responsibility for debts may be up to the court, if litigation is involved. If the couple has an agreement in place, the need for litigation may be obviated, allowing both to move on with their lives following their divorce.
Couples may agree to such things as who will own what property after a divorce, how debts will be handled, how much money each spouse will contribute to the marriage and whether spousal support will be paid in the event of a divorce. In order for such an agreement to be deemed valid, both spouses will need to exchange complete and accurate financial information with the other. They will both need to sign the agreement, and if spousal support is included as part of the agreement, a witness will also be required. Following a separation, a couple may also reach an agreement in order to fully settle their divorce in the absence of a previously issued one.
When a couple decides to divorce, they may decide that the best approach is to reach a settlement that is fair to both. The collaborative law method allows spouses the ability to sit down together with their lawyers in order to reach such an agreement. People who are in that position may want to consult with a collaborative law lawyer. This method of alternative dispute resolution may allow spouses to maintain more control over their divorce.
Parents or guardians of a child in British Columbia who share custody with another individual cannot just move to another area without giving written notice 60 days in advance. This is the case even if the individual plans to move only themselves or only the child. There are a few special circumstances in which this does not apply; for example, if there is a threat of violence to the child or guardian, notice is not required.
The people who have been given notice, then have the opportunity to object to the move. The individuals may try to work out an agreement, but if they cannot, the person who is objecting to the move might file for a court order. The court will then decide whether the guardian or child can relocate. It will weigh a number of factors in making this decision, including the effect on the child’s quality of life, the reasons for the move, how it will affect the child’s relationships with others and the child’s best interests.
Some suggest that the relocating party discuss moving plans with others affected by the action well before the move is finalized. This may help reduce or eliminate conflict, and custody arrangements can be renegotiated in a more amicable atmosphere.
For parents or guardians of children who are dealing with a move, approaching the situation with a collaborative law perspective may lead to better solutions. Lawyers may be able to assist in negotiating new agreements around custody and visitation that allow one parent to take advantage of an educational or job opportunity in a new area while still maintaining good relations with the other parent.
Unmarried couples who live together or lived together for a substantial amount of time are subject to many of the terms contained in the Family Law Act. For instance, those who lived together and thought of themselves as a couple are subject to property division laws if they were together for more than two years. Unmarried couples who lived together and had a child together could be impacted by child and spousal support laws regardless of how long the relationship lasted.
The reason why child support could be awarded after any length of time together has to do with the interdependence between the parents. Property division laws exist solely to ensure that any assets accumulated during a relationship are properly accounted for and divided between the couple. In most other legal matters, common-law couples are treated as married couples. For instance, they generally get the same tax treatment and the same rights of inheritance.
Currently, the number of common-law families in British Columbia are growing at a rate much faster than the number of married couples. Therefore, the law has evolved to recognize that couples who act as a family are treated as such even if they don’t formally marry. Those who are part of a common-law relationship and wish to end that relationship may wish to talk to a lawyer about their rights and obligations under the law.
In a collaborative law setting, the goal for both parties is to work together to come to a settlement that benefits both parties as well as their children. This may make it easier to maintain a civil relationship in the future, which may be in the best interests of the couple’s children. It may also lead to a resolution of the case in less time.
Most of us have probably heard of or know someone who has been involved in a “nasty” divorce: a divorce where both spouses are out to see who gets the best of the other one, Some of these divorces even start out on a fairly even keel, and then turn sour throughout the process. Once a conflict starts, it can grow from a molehill into a mountain; these situations rarely end well. They can become expensive and if children are involved, they often end up in the middle of some very unhealthy relationships.
If you are considering a divorce, there is a better option. You can opt for a “collaborative divorce.” A collaborative divorce is not only less stressful for all parties involved — including children — but it’s also less expensive, as it avoids expensive court costs.
The goal of a collaborative divorce is for the parties to work together with attorneys, mediators, arbitrators and other needed professionals to come to a resolution outside of the courtroom. A professional team works with individuals to negotiate the unique circumstances of each family in a positive way.
Many attorneys now practice this type of collaborative family law, which interestingly enough, stemmed from a discouraged family attorney who became tired of the adversarial process and decided to do something different. He began working with families outside of the court system to resolve their disputes in a respectful and dignified matter.
At the same time, another group of professionals, which included psychologists, financial planners and social workers, were working on similar goals for divorcing spouses. These two new methods integrated in the mid-1990s. Collaborative Practice was coined as the term that covered both Collaborative Law and Collaborative Divorce. In British Columbia, this might also be referred to as an ADR, or an “alternative dispute resolution.”
A separation or divorce is hardly ever painless, but the process used to get through one can make a huge difference in the outcome. In a collaborative divorce, a divorce is far more likely to end amicably, and the children involved are less likely to be damaged in the process.
Source: CollaborativeDivorceBC.com, “Collaborative Practice; Putting Families First,” Susan Gamache, accessed April 15, 2015
If you are planning on ending your marriage, have you thought about how this is going to modify and rearrange your living arrangements? There are a lot of decisions you and your spouse are going to have to make, such as whom the children are going to live with, child visitation, child support, property division, spousal support — just to name a few.
You have a couple of options to help you with these decisions. One option, of course, is to go to court and let the judge make the decisions for you. Just keep in mind that when the judge makes the decisions for you, they may not be in your favour. While judges try to be impartial and fair, this type of decision-making often turns out to be more favourable to one party than the other, which breeds dissent between two parents, who may have otherwise ended their marriage in an amiable fashion.
Your other option is using collaborative law. In this case, you and your spouse can work together through a mediator to make these important decisions. You’ve been making decisions together throughout your marriage — and you are probably the best people to make them regarding your break up. A mediator can set up other professionals that may be needed, such as a tax or financial professional, a counsellor, or any other resources that will make the process easier or lessen the complexities.
When the important decisions, such as child care, visitation and child support have been made, your attorney can help you draw up an agreement and file it with the court. The agreement does not have to be filed with the court, but by doing so, the court can enforce the agreement if it ever becomes necessary. It can be filed at any time, but a court cannot enforce it until it is filed in the court system.
If collaborative family law is supposed to be a friendlier, healthier way of solving family disputes, what happens when two people cannot agree? First of all, let me say that is a perfectly “normal” situation. If the parties were already agreeing, they wouldn’t need either a mediation process or a court to solve their dispute. The goal is to help those who cannot agree come to a satisfactory agreement outside of court, but it does not mean that all emotions will be absent or silent. On the contrary, while a collaborative family law team hopes to see parties come to an agreement in the most amiable way possible, parties are encouraged to state their needs and desires in the process. Lawyers, mediators or arbitrators are there to keep each party on task, to provide guidance and support, and to assist their clients in finding a solution that each can live with.
During the process, one or both parties may express anger, tears, sadness or a variety of other emotions. As long as the emotions are expressed in a healthy and non-dangerous fashion, this is okay. The goal is still the same — to work through the process; however, each party has the opportunity to make his or her case for what is important to them. Knowing what is important to each other, and why, opens the door for compromise.
If parties are having trouble coming to an agreement, other professionals may be recommended to provide advice. For instance, if a couple who is divorcing cannot come to an agreement about property division, a financial adviser may be called in to help provide advice and possible strategies.
Alternative dispute resolution includes a variety of different means for resolving disputes: mediation, arbitration, collaborative law or med-arb. An attorney who practices ADR can help you decide which is best for your situation. Whether you need assistance with a divorce, child custody, property division or are having a dispute of a different kind, if you are looking into ADR, you have made a good choice.
ADR can be much more suitable for people who don’t want to go to court to resolve their differences. It is also private, which is not the case when you are in the court system. Many people want to know: what is the difference between these types of ADRs?
Collaborative law involves an attorney for each party. Participants sign an agreement at the beginning of the process, and the goal for the end result of the process is a binding agreement that each party must abide by. During the collaborative process, a sequence of conferences takes place between the four parties and other professionals as needed.
In mediation, the parties have a neutral, unbiased mediator who listens to the issues and helps the parties come up with an agreeable resolution.
In arbitration, a neutral party listens to the issues by both parties, and then they make a non-biased decision, similar to a judge in court. However, this process is much less expensive than going to court and is private between the two parties only.
Med-arb is using both mediation and arbitration to resolve disputes. The mediator and arbitrator may be the same person or two different people. If mediation works, there is no need for arbitration; however, if some issues still cannot be agreed on, the arbitrator will then step in and make a decision for the parties. You can read more about the med-arb process here.
As Father’s Day goes by year after year, there are many children of divorced parents missing their fathers and feeling forgotten. It’s not that some of these fathers don’t want to be with their children, but often conflict with the child’s mother just makes it easier to stay away. Of course, in some situations, this is reversed, and it is the mother who no longer is a vital part of their children’s lives.
One way that couples planning a divorce can make sure this doesn’t happen with their children is by opting for a collaborative divorce. In a traditional divorce, one parent is often set against the other. Even if the divorce started out amiably enough, it can turn ugly before the divorce process is over. All communication often stops between the spouses, and the attorneys are only interested in coming out ahead for their client. Once the divorce is complete, the two parties may not even be speaking.
This is the worst thing that can happen when children are involved. Children can feel their parents’ hostility towards one another, and often get drug right into the middle of it. Parents may try to punish each other by using the children as a ploy. Hopefully, this doesn’t happen and the parents always put their children’s needs first; however, nine times out of 10, if the divorce is hostile, that doesn’t happen.
The goal in a divorce should be to regroup and restructure the family for the best outcome for the children and the parents going forward. This is why collaborative divorce is often the best option. In a collaborative divorce, both spouses are encouraged to express their needs and come to a compromise on divorce issues, including custody and visitation with the children. As they work together with mediation-trained attorneys and other professionals as needed, such as financial advisors or mental health professionals, they are able to communicate their feelings and often end their marriage with better feelings towards one another.
This is a win-win situation for all. The parents both stay more involved with their children when they work together with the other parent. A husband or wife is also more apt to pay any agreed-upon child support. In the long run, the children are more emotionally stable as they grow into adulthood.
Source: Benzinga.com, “Collaborative Divorce Option Recommended This Father’s Day for Divorced Dads to Stay Close to Their Children,” June 16, 2015
When a parenting time order is issued, parents are expected to follow the order. While there are some exceptions to this, failing to follow a parenting time order is considered serious business. Legal action can occur if a parent doesn’t follow the parenting time orders.
What are the exceptions to having to follow a parenting time order?
There is a variety of reasons why a parent could legally deny another parent parenting time. For example, if a parent has a valid reason to believe that the child will be harmed if parenting time is allowed, parenting time can be denied. If the parent who is supposed to get the child is drunk or otherwise impaired, parenting time can be denied. Failure to pay child support payments isn’t a valid reason for a parent to deny the other parent parenting time.
What can the court do when parenting time is denied?
There are several options the court has when parenting time is denied. The court can fine the parent who denied the parenting time or require that parent to pay the other parent. The court can set up a new schedule for the parent to make up time with the child. The court can order that the parent who denied parenting time pay for any expenses incurred because of the denial. The court can also order counselling or dispute resolution to solve the issues that led to parenting time denial.
What if a parent refuses to participate in parenting time?
The court can take action in that case since it is a hardship on the child when a parent doesn’t show up for parenting time. In some cases, counselling might be ordered for the parents, the child or all parties. The parent who didn’t show up for parenting time might have to pay for childcare, lost wages and travel expenses the other parent incurred because of the missed parenting time.
Parents have a duty to care for their children. If you are having issues with parenting time orders, explore what options you have to correct those issues so that you can get the situation resolved.
Source: Justice BC, “What can I do if the other parent doesn’t follow the agreement or order about parenting time or contact?,” accessed July 09, 2015
Many decisions are involved in the divorce process, and both parties are usually seeking to protect their own futures as well as the futures of any minor children involved in the marriage. We previously discussed issues such as calculating child support and increasing the chance that both parents can be involved with the lives of children. Whether or not you have children, a collaborative divorce process might help you have greater peace and success with the entire process.
A collaborative divorce does not mean both individuals agree on everything and that there are no arguments regarding the division of property or support. What it does mean is that both individuals, along with their attorneys, enter into a mediation process that doesn’t always involve time spent arguing in court. The process is more about negotiation and finding a solution that works best for both parties.
Collaborative divorce helps two people who had a life together work together to separate those lives while recognizing that they share a history, a family and property. Collaboration helps divide property where possible in a way that makes sense for the people involved — which might not always be the court’s way of separating things.
Attorneys who are experienced with collaboration are able to work together and with clients to form solutions. When we spend most of our time and efforts on solutions instead of fighting legal battles, individuals often come away with a greater peace and closure about the divorce process — not to mention a greater chance at succeeding with personal goals during the process.
While we hold the collaborative process in high esteem, we do know that it doesn’t work for everyone. We work hard for our clients — whether in court or through collaboration — to help individuals create the strongest platform for success with their new lives.