The idea that there is a “magic age” when children care old enough to decide whether they will live with one parent or the other is a common misconception. Parties commonly believe that their child will turn 12, and be old enough to assert who they want to live with. The reality is that a Court has the authority to determine who a child will live with, and how much time they will spend with each parent until that child is 18 years old. 

Children are all different, and develop at different rates. A 9 year old may be able to clearly express their wants and their very carefully thought few reasons for those wants, whereas a 14 year old may express they want to live with Mom because Mom bought them a bike last week. These developmental differences makes it difficult for the law to impose one rule that applies to all children. 

So what can be done when a child expresses a clear desire to live with one parent? The Court may order that a lawyer be appointed for that child, or may order that a mental health professional meet with the family and the child and prepare a report for the Court’s consideration. 

In the Collaborative Process, a Family Specialist can meet with the entire family and assist the parents with understanding the needs of their children, and the needs of their family as the family goes through the separation process. The Family Specialist can assist with providing information on the child’s wants and needs to help guide the parents through the decision of who the child should live with, and how much time the child should spend with each parent.

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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]

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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.

The post Keeping It Private: Are Collaborative Divorce Records Public In Alberta? appeared first on Collaborative Divorce Alberta.

Understanding Collaborative Divorce

Before we delve into the timeline, let’s ensure we have a clear understanding of collaborative divorce. Collaborative divorce is a method that emphasizes cooperation, transparency, full disclosure and open communication between separating parties. It’s designed to minimize conflict, reduce stress, and encourage both parties to reach mutually beneficial agreements with the assistance of trained professionals.

But . . . how long does it take? 

Variable Timelines

Timelines can vary widely depending on the complexity of your situation, the number of issues to be resolved, and the willingness of both parties to cooperate. In general, however, collaborative divorce tends to be faster than traditional litigation, which can be bogged down by court schedules and cumbersome procedures.

Efficient Resolution

One of the primary benefits of collaborative divorce is its efficiency. In most cases, collaborative divorces are completed more quickly than courtroom divorces. This is because the process is designed to encourage early full disclosure, fulsome exploration of options, open and respectful dialogue and focus on the future, leading to quicker resolutions of issues like property division, parenting, child and spousal support. 

Your Control Over the Timeline

In a collaborative divorce, you and your former partner/spouse have more control over the timeline than you would in a traditional divorce. You can schedule meetings and negotiations at your own pace, both in terms of frequency and duration; making it easier to accommodate your personal and professional commitments.

Completion Factors

The timeline of a collaborative divorce can also depend on the specific factors involved in your case. If you have complex financial arrangements, intricate property division, or disputes over child custody, the process may take longer to reach a resolution. However, the collaborative process is designed to be flexible and adapt to the unique needs of your situation, including retaining a joint neutral specialist, such as Divorce Coach, Parenting Expert, and/or Financial Expert, which reduces the time and cost involved in the traditional “battle of the experts” and ensuring both parties get the support and information they need to make informed choices. 

Conclusion

The duration of a collaborative divorce in Alberta is not set in stone, as it varies depending on your specific circumstances. However, in general, collaborative divorce tends to be faster and more efficient than traditional courtroom divorces, also resulting in a more customized solution, and one that is less likely to be sought to be changed by one or both spouses in the future. 

To get a more accurate estimate of how long your collaborative divorce may take, it’s essential to consult with a qualified family lawyer or collaborative professional who can assess your unique situation and guide you through the process. Remember that the collaborative approach prioritizes open communication, cooperation, and efficiency, ultimately helping you and your spouse transition into the next chapter of your lives with less stress and more control over the outcome, including the timeline.

The post The Collaborative Divorce Process In Alberta: How Long Does It Take? appeared first on Collaborative Divorce Alberta.

Understanding Collaborative Divorce:
Before we delve into the cost, let’s first understand what collaborative divorce is. Collaborative divorce is a voluntary and client-centered approach to divorce that aims to minimize conflict while resolving issues related to property, assets, and child custody. It involves a team of professionals, including lawyers, financial professionals, family specialists, and divorce coaches, working together with the couple to reach an agreement outside of court.

Now, let’s address the key question: Is collaborative divorce cheaper in Alberta?

Legal Fees
One of the main reasons people consider collaborative divorce is the potential for cost savings. In traditional divorces that go to court, legal fees can quickly escalate as lawyers prepare for hearings and trials. In a collaborative divorce, the process encourages open communication and cooperation between parties, which often results in a more efficient use of legal services.

Collaborative divorce allows you to share resources, such as financial professionals, which can be more cost-effective than each spouse hiring their own. Additionally, the emphasis on negotiation rather than litigation can save you significant money in legal fees.

Time Efficiency
In Alberta, court proceedings often entail significant time investments due to congested schedules and the intricacies of legal procedures. In contrast, opting for a collaborative divorce empowers you to establish your own timeline, frequently leading to faster resolutions. This expeditious resolution can translate into substantial cost savings, as it reduces the need for prolonged legal representation, saving you from incurring extensive lawyer fees.

Emotional Costs
While not directly related to finances, it’s essential to consider the emotional toll of divorce. Collaborative divorce is designed to reduce conflict and stress for both parties, which can have long-term benefits for your mental well-being. A more amicable process can also lead to smoother co-parenting and post-divorce relationships, ultimately impacting your quality of life and, indirectly, your financial situation.

Customized Solutions
Collaborative divorce allows for more customized solutions that suit your specific needs and circumstances. This flexibility can help you avoid costly court battles over issues like child custody, property division, and spousal support.

So, is collaborative divorce cheaper in Alberta? The answer is often yes, but it depends on your individual circumstances. While collaborative divorce may have upfront costs, it can lead to significant long-term savings in legal fees, time, and emotional well-being. It offers a more cost-effective, efficient, and personalized approach to divorce for those willing to work together to find common ground.

If you’re considering divorce in Alberta, it’s essential to explore your options fully and consult with a Collaboratively trained professional who can provide guidance tailored to your situation. Collaborative divorce may not only be cheaper but also a more peaceful and positive way to transition into the next chapter of your life.

Remember that divorce is a deeply personal journey, and the right choice for you may not solely depend on cost considerations. However, collaborative divorce in Alberta is a viable option worth exploring if you seek a more cost-effective and amicable path to separation.

The post Is Collaborative Divorce Cheaper in Alberta? A Closer Look. appeared first on Collaborative Divorce Alberta.

Understanding Collaborative Separation/Divorce

Before delving into its efficacy, it’s important to establish a clear understanding of collaborative separation/divorce. Collaborative separation/divorce is an approach that prioritizes cooperation, open dialogue, and mutual consensus between spouses, with the support of legal professionals, and often the additional assistance of financial advisors and counselors. Its primary objective is to diminish conflict, alleviate stress, and promote collaborative problem-solving, enabling couples to come to agreements on their divorce and separation-related matters in a more efficient and cost-effective manner than litigation.

So, does collaborative separation/divorce work?

• A Proven Track Record: Collaborative separation/divorce has gained popularity in Alberta and beyond for a reason—it works. Numerous couples who have chosen this approach have successfully navigated their separation or divorce with less emotional turmoil and strife compared to traditional courtroom battles.  

• Mutual Commitment: The success of a collaborative separation/divorce hinges on the mutual commitment of both parties to work together toward an amicable resolution. When both spouses are willing to engage in open dialogue, negotiate in good faith, and prioritize the best interests of any children involved, collaborative separation/divorce has a higher chance of success. 

• Resolving Complex Issues: Collaborative separation/divorce is particularly effective in resolving complex issues such as parenting, child support, spousal support, and property division, including farm operations and corporate matters. The process encourages creative problem-solving, allowing couples to tailor solutions that better suit their unique circumstances. 

• Professional Guidance: One of the strengths of collaborative separation/divorce is the involvement of trained professionals, including lawyers, financial experts, and family counselors. These experts help facilitate discussions by providing legal advice, tax advice, and parenting advice to ensure that both parties are fully informed throughout the process. 

• Better Post-Separation/Divorce Relationships: Collaborative separation/divorce often results in better post-separation/divorce relationships between former spouses. By fostering transparency and cooperation, it lays the foundation for a smoother transition into co-parenting and other shared responsibilities. 
• High Satisfaction Rates: Studies have shown high satisfaction rates among couples who choose collaborative separation/divorce. They report feeling more in control of the process, experiencing less stress, and being more satisfied with the outcomes. The process allows the parties to maintain confidentiality and resolve their issues in a legally binding and enforceable manner. 

Collaborative separation/divorce is not just a buzzword; it’s a viable and effective alternative to traditional courtroom separations/divorces, especially for those seeking a more amicable and less adversarial approach. Does collaborative separation/divorce work in Alberta? Yes, it does, but its success depends on the willingness of both parties to engage in the process and work towards mutual agreement. Collaboratively trained professionals use their skills and techniques from interest-based negotiation and mediation to assist the parties in reaching a resolution which is acceptable to both parties.

If you’re considering separation or divorce in Alberta and value cooperation, open communication, and a more personalized approach to ending your relationship/marriage, collaborative separation/divorce may be the right choice for you. Consult with a qualified family lawyer or collaborative professional to explore your options fully and make an informed decision that aligns with your goals and values. Collaborative separation/divorce offers a path to a more peaceful and respectful separation, helping you transition into the next chapter of your life with confidence and dignity. 

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The idea that there is a “magic age” when children are old enough to decide whether they will live with one parent or the other is a common misconception. Parties commonly believe that their child will turn 12, and be old enough to assert who they want to live with. The reality is that a Court has the authority to determine who a child will live with, and how much time they will spend with each parent until that child is 18 years old.

Children are all different, and develop at different rates. A 9 year old may be able to clearly express their wants and their very carefully thought few reasons for those wants, whereas a 14 year old may express they want to live with Mom because Mom bought them a bike last week. These developmental differences make it difficult for the law to impose one rule that applies to all children.

So what can be done when a child expresses a clear desire to live with one parent? The Court may order that a lawyer be appointed for that child, or may order that a mental health professional meet with the family and the child and prepare a report for the Court’s consideration.

In the Collaborative Process, a Family Specialist can meet with the entire family and assist the parents with understanding the needs of their children, and the needs of their family as the family goes through the separation process. The Family Specialist can assist with providing information on the child’s wants and needs to help guide the parents through the decision of who the child should live with, and how much time the child should spend with each parent.

Article Written By Joanna Waldie, Bruyer & Mackay LLP

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Article Written By Holly Brady, CFP, CDFA, CFDS, RCP, Prospera Solutions

The post The Challenges of ‘Grey Divorce’: Tips For A Successful Transition appeared first on Collaborative Divorce Alberta.

Article Written By Holly Brady, CFP, CDFA, CFDS, RCP, Prospera Solutions

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