Divorce Act amendments coming into force on March 1, 2021

The Divorce Act amendments from 2019 are finally coming into force on March 1, 2021, after being delayed for almost a year because of the pandemic.

The Department of Justice's (DOJ) "Divorce Act Changes Explained" compares the previous version of the Divorce Act to the amended version.  The DOJ has compiled resources for lawyers and families. 

The amendments are mainly focused on parenting provisions.  They include references to parenting plans, which have long been a component of Separation Agreements created through the Collaborative process. 

Jenny Woodruff, Collaborative Family Lawyer

Collaborative divorce and online dispute resolution: How COVID-19 is changing the way we settle disputes

By Marcus Sixta, Collaborative Divorce Lawyer, Mediator

COVID-19 has laid bare the many vulnerabilities of our justice system. In the first few months of the pandemic, courts were effectively shut down, except for the most urgent matters. For family law and divorce cases, this meant that many hearings and trials were adjourned and claimants had no access to the courts to get an order or judgment. There is still a massive backlog of family law cases in our court system today which will likely last for some time.

However, rising out of this crisis is a new level of appreciation for alternative dispute resolution processes, like Collaborative divorce, which can be conducted online and remotely. On February 17, 2021, the Canadian Bar Association released a report titled No Turning Back: CBA Task Force Report on Justice Issues Arising From Covid-19. This report includes the following recommendations regarding dispute resolution:

• Justice system partners (including groups representing justice seeking individuals, court and tribunal administrators, bar representatives etc.) should establish a working group dedicated to exploring how to effectively triage matters that are more amenable to early resolution and matters that better lend themselves to remote proceedings.

• The working group should explore which areas of law are potentially suited for ODR-type platforms and how to integrate all these matters into the public system.

Online dispute resolution (ODR) is a process of resolving disputes online and can include mediation and Collaborative law. A videoconference platform with screen sharing technology is used so that all the participants can see each other and share documents. Also, these platforms, like Zoom, include the option to create breakout rooms so that participants can meet privately with their lawyers before coming back together as a group.

In my practice, I have seen that the majority of family law cases do not need court intervention. Most of them in fact are resolved outside of court, but for some reason there are those who are still resistant to alternative dispute resolution processes like Collaborative law and mediation. However, changes to the justice system brought on by COVID-19 may be forcing them to accept a new reality.

In 2020, when COVID-19 had closed the doors to the court system, many people had no other choice but to resolve their family law disputes in mediation or through a Collaborative process because these processes can be utilized fully through online platforms. As a result, some people (including some family lawyers) who would never have considered mediation or Collaborative divorce gave it a try. Moreover, I have witnessed judges in court being far more assertive with people and very firmly telling them to attempt to resolve their matters outside of court because court resources are so limited now.  

My experience with ODR processes like Collaborative divorce and mediation over the last year has convinced me that for many people this process is more client centered and convenient. Rather than needing to travel to a lawyer’s office, clients who may have long commutes can attend meetings at home. For people living in small communities with limited legal resources, ODR opens up the possibility of working with Collaborative lawyers and mediators in other cities. Individuals with mobility limitations are also benefiting from ODR as it means they can access dispute resolution services wherever is convenient for them.

The justice system is slow to adapt to change, but COVID-19 has forced it adapt to the times by advancing technologically and further embracing alternative dispute resolution processes. It has also highlighted the benefits of ODR and how this can be used in mediation and Collaborative law to reduce the pressure on the courts, while also providing a client centered approach to conflict resolution. These changes should be enshrined in court rules and legislation so that they last well beyond the pandemic. As stated in No Turning Back: CBA Task Force Report on Justice Issues Arising From COVID-19: "First, there is no turning back. The pandemic propelled the justice system into a long-awaited modernization. We must continue forward and build on the measures, procedures and innovations implemented in response to the pandemic and focus on the needs of the users of the justice system."

Talking to Your Kids About Divorce - The Most Difficult Conversation of All!

By Alyson Jones, MA, RCC, Divorce Coach, Child Specialist, Child & Family Therapist

Challenging conversations can actually bring your family closer, as difficult conversations can be opportunities for growth. Talking to your children about difficult topics can demonstrate to them that you have their best interests at heart, that you are courageous enough to face problems and that they can rely on you for information and guidance. There are many difficult conversations we need to have with our children but informing the children you are getting divorced may be one of the most difficult of all.


Why is the divorce talk such a difficult conversation? First of all, we need to understand that as parents we are programmed to protect our children. If our child is being bullied we know what our role is. Sometimes we must temper out reactions so we can truly assist our children – but there is no doubt that we have a visceral response when our children are in danger of being hurt physically and emotionally. I can certainly recall times when my own “mother bear” reared its head and I wanted to retaliate against the bully that was attempting to harm my child. Of course, I realized that it would be wildly inappropriate for a middle age Child and Family Therapist to be taking down some 8-year-old that was teasing my child on the playground – but I won’t pretend that the thought did not cross my mind!

 
This desire to protect also applies to conversations about sex and drugs. There is some outside force that might harm our child – and we want to prepare and protect our child against something dangerous. Our protective role is clear. So, the truly complicating factor that makes talking to your children about divorce so difficult is that the parents are the source of the pain. This causes great dissonance. How do we help protect our child against ourselves – when we are the ones causing great sadness and distress in our children? This may be the reason so many parents avoid this conversation, or rush through it by trying to tell their children that everything will be fine.


The bad news is that talking to your kids about divorce is one of the most difficult conversations that parents can have with their children. Although I understand and empathize with the guilt parents may feel in this situation, this guilt and discomfort should not be used as an excuse to avoid doing what must be done. I caution parents that avoiding this conversation, or candy coating it in some way, may only cause additional distress and pain in the long run for the children.

 
The good news is that if the parents do this conversation well, they can help their children adjust and heal much quicker. Change is inevitable in life, and how we approach the divorce talk can teach children that grace and dignity can be part of grieving and healing. There is no perfect way of having this talk – but it is best when it is done in an authentic and thoughtful manner.


Some tips for talking to your children about divorce:

1. It is always best if both parents can tell the children together.  You brought the children into the world together, and you owe it to your children to make their needs more important than your marital difficulties. It is important to come together and hold the space for your children during this conversation.  The parents need to be the leaders – and leaders show their true strength during the most difficult of times.  This will demonstrate true courage in the face of adversity and set the template for your children to develop grace under fire.
2. Give them an explanation.  Do not give your children too many details regarding your marital difficulties but do provide an explanation that makes sense to them.  Let them know your love has changed, and sometimes adult love changes and no longer fits together like it once did.  Let them know as a couple you have done many things well – like creating them – but unfortunately you did not work out your problems well together.  Honour each other in front of the children and let them know you are sad as well – but do not let your sadness or feelings dominate the discussion.
3. Acknowledge that this is a sad day for the family.  Tell your children that whatever they are feeling is ok.  It is ok to be sad, mad, disappointed and fearful of the changes.  Don’t try to “sell them a line” that everything is great and they will be happy again soon.  Do not be afraid of their sadness – acknowledge it – and let them know there are some things that are worth feeling sad about.  
4. Be honest about what will be changing and what will not be changing.  Let them know that their schedules and living arrangements will be changing.  Tell the children that some things do not change. Let them know that although adult love can change– the love between parents and children is a unique kind of love and it never changes.
5. Let them know that a plan is in place.  It is best if you have this worked out beforehand.  Children need to know their schedule.  Reassure them that you will still work together as their parents, and rather than just one home they now have two safe harbours in the world.  Let them know there may be bumps ahead – but you will do your best to work through the bumps and that they are your top priority.

Leading your children through changes in your family can build a deeper intimacy with your children.  It is a real-life experience in which they can see you continue to do your job as a parent even under pressure.  Our challenges and human vulnerability often connect us – and this can be the gift that emerges as your family changes and evolves. 

Impact of COVID-19 on Guideline Income

By Patti Daum, Financial Specialist, CPA, CA, CBV

As spouses separate, the issue of child and spousal support often becomes an issue, and it may be necessary to measure one or both spouse’s income available for support purposes (or “Guideline income”).

Given the far reaching economic and financial impacts of the pandemic on many taxpayers, historical income may not be indicative of income for the foreseeable future.  It may become more important to assess monthly income (rather than just annual income) in this rapidly evolving situation.

During COVID-19

British Columbia is currently (January 2021) in Stage 3 of our Restart Plan, with a number of province-wide restrictions currently in place, which impacts many businesses including nightclubs, restaurants, vacation accommodation including hotels and resorts and all other businesses who enjoy spin off economic benefits from tourism, aviation and the performing arts, to name a few.  Those individuals going through separation and divorce who have their own businesses in these sectors and many others, are likely financially impacted by COVID-19.

In our view, as activities adjust to the “new normal”, monthly data will become more important in establishing current and prospective income during COVID-19.

While not strictly a component of Guideline income, parties may want to consider the impacts of potential cash injections into businesses to keep them operational.

Potential approaches to take to estimating income during the pandemic

1. Use monthly information to estimate available income during COVID-19.
2. Consider modeling scenarios in order to understand the practical implications of lower income.  While income may not ultimately be determined based on these scenarios, they will help in planning for the family’s needs.
3. Use financial planning experts/tools to assist in making sure the family’s needs are met during the period of lower income.
4. Treat the during COVID-19 period separately from ‘available income after COVID-19’.
5. Maintain flexibility to revisit available income in the future.
6. When businesses are involved, take a holistic approach to the business to consider the impacts on the business in terms of cash injections required, structural changes (lower staffing levels), and other changes.

After COVID-19

With the country slowing starting its vaccination program, individuals may want to revisit available income after COVID-19 is no longer as prevalent or active (Stage 4 of BC’s Restart Plan).  While this may be an option for some, we note that obtaining reliable data of available income for an operating period after COVID-19 will result in a significant delay.

Available income will be impacted by trends caused or accelerated by COVID-19 and structural changes in the business.  As an example, will staff that were laid off be able to be replaced.  If not, how will that impact the capacity of the business?

The extent to which demand will rebound is unknown at this point.  While we are confident that the economy will recover, what is unclear is the shape of the recovery.



If you need assistance from professionals to determine the appropriate income amount to use for child and spousal support purposes, financial specialists with an accounting designation (CPA) and Chartered Business Valuators (CBVs) frequently assist clients and lawyers analyze annual and where necessary, monthly incomes. If you are looking for help in Vancouver or the Lower Mainland in BC, Collaborative divorce professionals, including financial specialists and lawyers who assist with this work, are listed on the CDV webpage.

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.

Collaborative process discussed on BNN Bloomberg Radio 1410

Collaborative Divorce Vancouver Society members Jim Doyle (Financial Specialist), Rahul Aggarwal (Collaborative Family Lawyer), and Alyson Jones (Divorce Coach and Child Specialist) were featured on an August 2019 BNN Bloomberg 1410 Radio program, discussing the Collaborative process.

For anyone wanting to learn more about the Collaborative process, you can listen to Jim, Rahul and Alyson on the August 4, 2019 Bloomberg radio program and also refer to the Collaborative Divorce Vancouver's website. 

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

By BC Collaborative Roster Society & Collaborative Divorce Vancouver members Justine Mercer, Nancy Cameron, Q.C. and Deirdre Severide