Keeping It Private: Are Collaborative Divorce Records Public In Alberta?

Making the decision to separate or divorce is difficult, and people contemplating this course of action often have many questions and concerns about the process. One common concern is whether their personal or financial details, or details of their property division or parenting arrangements can or will become public knowledge. In this blog post, we’ll review the privacy aspects of the collaborative divorce process, and compare them with those of the adversarial divorce process.

 

Understanding Collaborative Divorce versus Traditional Divorce

Collaborative divorce is a process that aims to minimize conflict between parties while they resolve common issues such as parenting, child and spousal support, and dividing assets and debt, by emphasizing cooperation, full disclosure, and honest communication between spouses. Collaboratively trained lawyers, financial specialists, and family specialists work together with the parties to assist them in generating different options to resolve their issues, deciding together which of those choices are preferable, and reaching agreement to implement those solutions that are most appropriate in their particular circumstances. While the collaborative financial and family specialists are neutral 3rd parties, the lawyers are not. This ensures that the parties will continue to receive legal advice throughout the process, and their interests will be protected.

The traditional divorce process is adversarial in nature and pits the parties against each other from the beginning. It requires taking litigation steps for the parties to go through the Court system to reach a resolution. Usually, one party will file the initial pleadings, such as a Statement of Claim for Divorce and/or a Claim for Division of Family Property, “against” the other party. This puts the other party in a position of having to “defend” themselves by filing their own pleadings, such as a Statement of Defence and their own counterclaims for divorce and division of family property.

Now that we have an understanding of each process, we can turn our attention to the initial concern: Are collaborative divorce records public in Alberta?

Privacy Protection

As mentioned above, the traditional divorce process requires the filing of pleadings by the parties with the Court. The Court creates a Court file for the family law matter, where all filed pleadings and other information about the matter are stored. Many pleadings require the inclusion of personal and financial details about the parties, which means that information could potentially be accessed by any member of the public that follows the proper procedure to request such access.

Since 2017, the Court has implemented a more stringent policy regarding who may access a Court file in a family law proceeding. The parties, their lawyers of record, any lawyers acting for any children of the parties, and any government employee acting in the course of their employment in respect of the specific Court file may have access to the Court file. Any person formally authorized by a party, lawyer of record, or lawyer for the children by way of a filed authorization may also have access, as can members of the media who are accredited by the Court. 

Any other person who requests access to the Court file in a family law proceeding must follow  an onerous process and comply with strict requirements in making their request, which request can be challenged by a party or a child of a party, and ultimately decided by a Justice of the Court.

Further, in a traditional divorce process, any areas of conflict may be brought in front of a Justice of the Court for a decision to be made. This can occur in regular docket Court, which is open to anyone to attend, whether they have their own matter on the docket or not. Any details that must be shared with the Justice for him or her to make their decision will be disclosed and overheard by every other person present in the open courtroom. 

In contrast, the collaborative process is a “closed” process that uses a framework unique to itself, which does not require the parties to go through the Court system to reach a resolution. Collaborative meetings are not open for attendance by anyone other than the parties, their lawyers, or the other collaborative professionals, so any sensitive or personal information will not be heard by random strangers and will remain private.

Every divorce must be processed through the Court system so it is inevitable that a Court record will be created, however that record will contain far fewer sensitive personal and financial details when the parties have used a collaborative process and come to their own settlement agreement instead of bringing every issue in front of a Justice and arguing in open Court.

As such, there is a greater degree of privacy enjoyed by parties in the collaborative process than in the traditional Court process.

Confidentiality in the Collaborative Process

At the beginning of the collaborative process, the parties, their collaborative lawyers, and the other collaborative professionals the parties plan to work with sign a Collaborative Participation Agreement. This is a contract setting out: the process in greater detail; the approach that will be taken, including what is expected of the parties in terms of production of financial disclosure, participation in meetings, and maintaining confidentiality; and commitment to the process, including the use of any information obtained or provided by the parties to each other during the process.

All collaborative meetings between the parties, their lawyers, and the other collaborative professionals that are working with them, and all discussions had during these collaborative meetings, are confidential. 

Protection for Children

For couples with children, protecting their privacy, and that of their children, is especially crucial. The Collaborative process uses family specialists, such as counsellors or parenting coaches, and prioritizes the best interests of the children involved to minimize the emotional impact on them. Keeping the details of your family issue private helps shield your children from exposure to potentially harmful information or public scrutiny.

 

The collaborative divorce process offers a more private and respectful approach to ending a marriage than the traditional approach to divorce and offers a path to divorce that prioritizes a smoother transition into the next chapter of your life.

If you’re considering divorce in Alberta and value privacy and confidentiality, collaborative divorce may be the right choice for you. It allows you to navigate the process with discretion, minimize emotional distress, and work together with your spouse to find amicable solutions.

Remember that privacy is just one aspect to consider when choosing the right divorce method for your situation. Consult with a legal professional to explore your options fully and make an informed decision that aligns with your needs and values.