07 April 2020

COVID-19 Family Law Resources & the Collaborative Process

Our thanks to Hannah M. DeJong of Boughton Law, who has made navigating the coronavirus pandemic easier for separating families by compiling information into a resource guide entitled COVID-19 Family Law Resources (BC).  The guide contains general information and is not meant as legal advice.

Hannah mentions a specific MediateBC program as one consensual dispute resolution process families in British Columbia can use during the pandemic. The Collaborative Process is another option for families (the Collaborative Divorce Vancouver Society in the Lower Mainland).  The Legal Services Society lists a number of other resources and consensual dispute resolution processes. They also have a list of Collaborative practice groups throughout BC.

07 May 2019

Victoria Pilot Project – Mandatory consensual dispute resolution to include the collaborative process

The BC Collaborative Roster Society is pleased to confirm that on March 29, 2019, (to come into effect on May 13, 2019) the B.C. legislature passed an order in council to amend the Provincial Court Family Rules. The amendment adds a section 5.01 to the Rules, titled: “Early Resolution and Case Management Model”. The “Early Resolution Requirements” will apply at first only to the Victoria registry (as a type of pilot project). The Early Resolution and Case Management Model sets out specific rules which will require any party wishing to commence litigation to first engage in mandatory consensual dispute resolution unless screened out as an inappropriate case to do so. Consensual dispute resolution is defined to be mediation, collaborative process or facilitated negotiation with a Family Justice Services Division officer.

This is an enormous step forward for collaborative process and more importantly, for separated families.  This pilot project is almost certainly just the beginning of other provincial court registries being designated Early Resolution and Case management Registries. This is the beginning of statutory change to help implement the Family law Act’s “resolution out of court preferred” and, if successful, may provide a model for the Supreme Court level.

In drafting the new legislation for the pilot project, the government members drafting the legislation consulted directly with a group of senior Collaborative Family Law lawyers, including several members of the board of the Roster Society.  The drafters were very responsive to the concerns raised by us about ensuring that the new Rules mean parties are referred to competent Collaborative Law practitioners and are screened appropriately.  We have had direct input into the language in the new Rules and into the forms which will be required to be executed by Collaborative professionals as part of the mandatory CDR process.

This is, and has been, an important objective of the Roster Society.  We are focused on the growth and development of the collaborative process and feared that if the collaborative process was not specifically identified in mandatory consensual dispute resolution, it (the collaborative process) would not grow and flourish and would be side-lined to mediation.  We believe that this is the first statutory change in North America to require an attempt, prior to litigating, at consensual dispute resolution as opposed to simply mandatory mediation  Stay tuned.  This is a very exciting day for collaborative process and for the future for separated families. 

Click here for a link to Order In Council No. 137, Approved and Ordered March 29, 2019

04 November 2018

Canada Pension Plan Credit Splitting

The Collaborative Divorce Vancouver Society recently featured a presentation by Doug Runchey on the factors that go into the analysis of Canada Pension Plan (CPP) credit splitting that he does through his consulting business DR Pensions Consulting.

It is important to consider whether CPP credit splitting on divorce is a good idea in an individual family’s situation.  The CPP rules are complex and it is not always clear whether a split benefits both parties when their marriage has dissolved.

In some cases a credit split will not result in a benefit to either party, or may in fact cost one party more than the benefit to the other.  Situations involving parties already retired, a child-rearing drop out, one party with a disability, or periods of time where individuals lived outside of Canada require special attention and analysis.

Parties may obtain their CPP Statements of Contribution through their My Service Canada online account or by printing out and mailing in the Application.

The government has a useful Canada Pension Plan Credit Splitting Guide for Legal Professionals with details on how credit splitting works.  Appendix I contains a table with the conditions of eligibility, including the minimum period of cohabitation and separation and time limits for applying.

02 July 2018

Financial Neutrals in the Collaborative Process

Everyone knows that divorce is stressful.  And if you didn’t know that, I’ve done some analysis on it to prove it to you.

But nobody seems to know or understand the separation process: having to navigate the rubble of your hopes and dreams to create a Separation Agreement that you never wanted in the first place.  

No one seems to understand the specific pain that you are in, that your understanding of your world has been stood on its head, or that the reactions and emotions you feel are reasonable given that your divorce may have been or not been of your choosing.

All anyone wants to talk about is the money and the law.

What monetary value can be placed on disappointed hopes, smashed trust and fear for the future? Are there enough resources in the world to assuage anger, grief and feelings of failure?

And tell me exactly, how is the law fair? Laws designed to encompass all, yet at the same time fit no one’s specific situation.

How do I know this? I've been there. I spent years in conflict with my spouse before getting thrown into the separation process and I’ve spent five years since then learning a better way to do conflict.

My role as a Financial Neutral is multifaceted but my main role is as an educator of the Collaborative Process.  Until this becomes the undisputed first choice of separating and divorcing couples, this will be how I will spend most of my time working on client files.

I am also an information gatherer. I gather financial information and I then I mine that information for what is hidden amongst that numbers:  the hopes and dreams of the parties involved and the hidden tax consequences, financial pitfalls or potential financial benefits of different courses of action.  

And lastly, I am a communicator. As the neutral in the Collaborative Process, I can share the information with everyone on the file in a clear and unbiased manner so that the parties involved can begin to discuss options that can combine with their newly discovered hopes and dreams to create the Separation Agreement and life they want post-divorce.

I have worked on files that I would consider successful Collaborative files and on files where “we did the best we could under the circumstances.” And that is what I’ve discovered makes the difference on successful and not so successful files: the circumstances of the file. 

This is what makes for a more successful file, in my experience:

  • Luck!  In that at least one party understands how the Collaborative Process works and can convince their partner to try it or luck in that the first point of contact for the separating couple is someone who can convince both parties of the merits of the Collaborative Process so that the parties willingly sign a Participation Agreement.
  • A standardized process in which it is assumed that all team members: Collaborative Lawyers, Divorce Coaches, Financial Neutral and a Child Specialist, will be involved from the beginning of the process. If it turns out a specific professional is not needed, then they can be phased out of the process. This is far easier to do than adding them in later when the file has become stuck.
  • A process where the financial information is gathered at the start of the file by the Financial Neutral.

Once the process is established, I have specific tasks as a financial neutral:

  • Creating a listing of assets and debts, which includes tracing their financial history
  • Reviewing tax returns
  • Creating budgets
  • Financial literacy training
  • Building forecasts based on options created by the clients
  • Advising and assistance with separation and divorce tax return planning and filing
  • Assistance with support reviews

So, if you have found yourself reading to here, then consider that your first piece of luck. You may be wondering where to start as you navigate your separation or divorce and you may have been wondering what first step to take.

Contact a Collaborative Professional; talk to a few and find a professional that you trust.  Explain that you are embarking on separating from your spouse and you want a healthy divorce and you’ve been told the best way to do that is use a team of professionals.

You need a mental health professional or Divorce Coach to help you develop options that are in line with the values that drive you forward in life.

You need a lawyer to advise you of the legal rules around separation and divorce and who can also document the separation agreement that you are going to use to navigate your new life post-divorce.

And you need a Financial Specialist to help you figure out where you stand financially at this moment in life and to also give you information about what your future financial situation could look like depending on which options you choose and decisions you make.

07 June 2018

Evaluating the Cost of Family Law Disputes

The Canadian Research Institute for Law and the Family (CRILF) recently released a report entitled "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" by Joanne J. Paetsch, Lorne D. Bertrand, and John-Paul E. Boyd.  Family law lawyers were surveyed for their views on dispute resolution processes, including the processes' costs, duration and perceived efficacy.  The information was used to conduct a Social Return on Investment analysis, which the authors explain is a framework "for measuring and communicating the social, economic or environmental impact of investment in an organization, project or program" (see page two). The report generally shows that Collaborative law and mediation result in less costly and more efficient outcomes that meet the needs of the parties and are in the best interests of the children. This report echoes experiences of members of the Collaborative Divorce Vancouver practice group. 

The Canadian Forum on Civil Justice contracted the CRILF to create the report, and used the report to create an excellent set of infographics that clearly shows the benefits of Collaborative law and mediation. 

A useful tip from my colleague Anna Silver is to provide the report to clients and their spouses, to help them decide which dispute resolution process to use. 

Another report released this spring is the Self-Represented Litigants Project's report by Sandra Shushani and Julie Macfarlane entitled "When Judges see SRLs, Do They See Gender? Observations on Gendered Characterizations in Judgements."  Their blog explains the ways in which they hope this report will help the judiciary when they have self-represented litigants in their courtrooms.

31 May 2018

Yet another reason to stay out of Court....

Karen F. Redmond
Family Law Lawyer

If you need a reason to stay out of court, other than fear of emotional damage and financial ruin, here is something you need to read.  In the case of a divorcing couple Ms. Wong and Mr. Li, they provided financial material to the Court in support of their various claims.  The Judge found they had less than satisfactorily reported their income to Canada Revenue Agency.  In a scathing Judgment, Justice Russell said neither party had properly paid income tax for many years, pointing out the "substantial unfairness to the Canadian people who meet their income tax and GST obligations from those who do not."    The Judge went on to say that the parties seemed to have no hesitation in taking the benefits offered by society, while showing no sense of responsibility to contribute towards the cost of those services.  Ms. Wong and Mr. Li had business and personal income reportedly close to $400,000 per year and the Judge made reference to the possibility that CRA may at some point in the future pursue the parties for unpaid taxes.  While somewhat amusing to the reader, this case should give all potential litigants and their counsel pause to consider alternate forms of dispute resolution, before potentially opening the books of your family finances and having them appear on the CBC twitter feed. 

Here is the link to the CBC story: