Navigating Divorce Together: Finding the Best Dispute Resolution Process

Divorce undeniably presents its share of challenges, one of which is choosing a dispute resolution process that will work for both spouses. In this blog post, we delve into the range of process options available in Alberta. The range runs from least adversarial, to the most adversarial. At the end of this blog, I include a short critique of the adversarial legal system we currently have in Canada. 

The four issues about which most separating couples have disputes are property division, parenting schedules, child support and spousal support. Let’s review the dispute resolution processes available.

Kitchen Table Separation Agreement

An informal separation agreement can be binding and final. There is a 2023 case out of the Supreme Court of Canada, in which the kitchen table agreement between the couple was enforced by the court after the husband had changed his mind two years after signing the agreement. It was an older couple who had been married for about 3 years. The wife had typed up a one page separation agreement setting out that the husband would keep his property, the wife would keep hers, and that their jointly owned house would be sold and the net proceeds of sale split equally. Friends witnessed the agreement, and there were no lawyers involved to formalize the separation agreement. That name of the case is Anderson v. Anderson. 

Mediation

This is a negotiation process using a single neutral professional, the mediator, who facilitates discussion between the parties about the issues that need to be resolved and helps the parties to reach agreements. Some mediators have a legal background. There is a list of mediators available on the AFMS website. If the parties successfully reach a separation agreement with the help of a mediator, the mediator will prepare a memorandum of agreement, which can either be turned into a kitchen table agreement (no lawyers) or turned into a formal separation agreement with the involvement of lawyers. 

Collaborative Divorce 

This is a negotiation process using two lawyers who have specialized negotiation training. Each spouse has his or her own lawyer providing legal advice and reasonable advocacy during four-way meetings. The parties sign a contract that they will share financial information, not take unreasonable positions, brainstorm how to resolve the disputes rather than attack each other, and allow the lawyers and other professionals to communicate and share information with each other as necessary to help the couple reach settlement. When settlement is reached, the lawyers prepare the settlement contract (variously called Minutes of Settlement, Separation Agreement, Domestic Contract, etc.) and will provide the independent legal advice and s.38 property acknowledgment necessary to formalize the settlement contract. For reasons I won’t get into here, a formal settlement contract is much more likely to be enforced by the court if one of the parties later tries to break the contract. The collaborative divorce process will often take months to complete. 

Arbitration & Mediation-Arbitration

This is an adjudication process, not a negotiation process. That is, the arbitrator will hear evidence from the parties (who typically are represented by lawyers), and it is the arbitrator will decide the outcome of the issues in dispute. Arbitration is privately funded, and not part of the court system. One advantage that arbitration has over court litigation is that the parties can establish their own evidence rules, rather than follow the complicated evidence rules set by the Rules of Court and case law. There are briefs and other paperwork prepared by the parties’ lawyers to assist the arbitrator. The arbitrator can make interim or procedural decisions along the process. The arbitrator’s decision will be in writing. 

There is version of this process called Mediation-Arbitration. Essentially, the arbitrator attempts to help the parties reach settlement in the early stages of the process. If there is still no settlement, the arbitrator changes his/her role from mediator to arbitrator, and proceeds to decide the outcome of the issues still in dispute. 

Whether arbitration or mediation-arbitration, this process will take several months to complete. 

Judicial Dispute Resolution – non-binding or binding JDR

If you have started a divorce action in the court system, you could access the JDR program through the courts. A non-binding JDR is similar to mediation, with a judge serving the role of mediator. There is some paperwork required before the JDR. The meeting with the JDR judge will normally only last one or two hours. At the end of a non-binding JDR, the judge will tell the parties and their lawyers what decision he/she would make if he/she were hearing this in a trial. The parties go away, and might reach a settlement after hearing that judge’s opinion. Typically, the parties attend the JDR with their own lawyers present. The court system does not charge for a JDR. 

There is a version of this process called binding JDR. It works essentially like a Mediation-Arbitration. A binding JDR can last a full day. If the parties do not reach a settlement during the mediation part, the judge will later issue a written decision imposing the final resolution of the outstanding issues. 

Full on adversarial litigation which will either settle along the way or go to trial.

Once you have started a divorce action in the court system, there are a number of litigation steps, including interim applications using affidavit evidence, questioning under oath, etc., as set out by the Rules of Court. The court system is historically based on the adversarial legal system, that is, out of combat the best outcome will come. 

Since 2020, Alberta courts have been trying in earnest to divert the parties to other dispute resolution processes, that is, mediation, collaborative divorce, JDR, etc., before being allowed to bring court applications or get trial dates. 

Many parties reach a settlement during the litigation process, and the Rules of Court include carrots and sticks to force parties to exchange settlement offers. 

For those couples who end up going to a full trial, it is not uncommon for the litigation process to drag on for three of four years before the trial actually takes place. Some unlucky couples continue to litigate over related issues for years after a full trial. 

A Critique of the Adversarial Legal System in Family Law

The following is reproduced from a March 2013 Globe and Mail article about the Cromwell Report, which report was released later that year under the title Access to Civil and Family Justice, A Roadmap for Change.

“An unreleased report commissioned by the country’s top judge is urging a radical overhaul of Canada’s family law system.

The report to Chief Justice Beverley McLachlin, scheduled for release next month, calls for restructuring the family law system from the ground up, with a focus on streamlining the court process and ending a fixation on combat.

The report, from a committee headed by Supreme Court Justice Thomas Cromwell, goes on to make more than two dozen recommendations, including the creation of specialized judges who can shepherd a family law dispute from beginning to end.

The family law system has been under attack for much of the past two or three decades over litigation that drags out and the destructive effect of the adversarial process on couples who are vulnerable and prone to go on the attack. And the inordinate costs of litigation have led to a massive increase in the number of litigants who represent themselves – now as much as 70 or 80 per cent.

A copy of the report, obtained by The Globe and Mail, says that estranged spouses and their children are seriously damaged by the adversarial system; and that judges, lawyers and law schools must embrace a culture of mediation and settlement.” [emphasis added]