Resolving Family Law Disputes Without Litigation

Family law disputes can be resolved in a variety of ways. In addition to litigation, the parties may attempt:

  1. negotiation, with or without the involvement of counsel;
  2. mediation, with or without the involvement of counsel;
  3. collaborative processes, with counsel and potentially with the assistance of experts such as divorce coaches, financial planners and child psychologists; or
  4. arbitration, with or without the involvement of counsel.

Adequate disclosure is an essential prerequisite to the success of any dispute resolution process and the durability of the resolution obtained.

The FLA specifically addresses alternative dispute resolution and contains many provisions to encourage parties to resolve their disputes out of court.  Section 224 of the FLA allows to court to order parties to enter into alternative dispute resolution.  Section 198 of the FLA provides for a suspension in certain limitation periods during the time period where parties are engaging in alternative dispute resolution.

Financial Disclosure

Rule 5-1 requires Supreme Court litigants to execute a financial statement, Form F8, whenever support or the division of family assets is at issue. The form is commonly used as a means of disclosure in family law files, and is more thorough and easier to use than the Provincial Court equivalent, Form 4. Even if the parties want to settle matters without going to court, or using the joint application procedure, both parties should be asked to provide a Form F8 financial statement in order to ensure that there has been full and complete financial disclosure before negotiations begin. Do not ignore the question about assets that were disposed of within the previous two years – it can sometimes reveal previously unknown assets.

Form F8 provides a good starting point to ensure that you have asked all the questions that are important when seeking full financial disclosure. Where property division is at issue and Form F8 is not used, ensure that your client provides you with:

  1. a list of all assets and liabilities in the client’s name (including those held jointly with other persons and assets held in trust by other persons for the benefit of the client);
  2. a list of all assets and liabilities in the name of the other party (with the same additional inclusion as for your client); and,
  3. a list of all assets and liabilities in the parties’ names jointly.

Family law cases are sometimes won and lost on the adequacy of financial disclosure. Have your client work on his or her financial statement as soon as possible. It usually takes clients some time to fill out Form F8. It also takes time to gather all the required financial documents listed on the financial statement. Sometimes these documents have to be requested from other persons or from Canada Revenue Agency. If some of the usual attachments are not available, you can prepare and file a financial statement without them, although you should provide the other party with an explanation and an approximate date the documents are expected.

Remind your client that their duty to provide disclosure is ongoing and continuous. It is not fulfilled with the filing of the first financial statement.

You may also want to ask your client to sign authorizations allowing you to obtain the necessary documents directly from third parties, but take care to ensure that there is no confusion about whose responsibility it is to obtain these documents.

Do not rely solely upon the information reported in the opposing party’s financial statement.  Obtain and review source documents such as personal T1 income tax returns, T-slips and schedules, bank statements, investment statements, corporate financial statements and corporate T2 tax returns. 

Mediation

Mediation can be used to resolve all or some of the matters at issue, as long as both parties are willing to employ the procedure and are willing to compromise their positions, at least in some respects. Mediation may not be suitable where the parties’ relationship was marked by family violence or where there is a significant imbalance of real or perceived power between the parties, unless the mediator has special training or skill in dealing with such issues. Refer to the Mediate BC website for a list of family law mediators.

Mediators are neutral. They do not give legal advice, do not make or impose decisions on the parties, and do not take sides in the mediation. Their role is to facilitate settlement discussions between the parties. Although emotions will run high from time to time, with the assistance of a skilled mediator, parties can often work out arrangements that resolve their dispute without the necessity of litigation. In mediation, parties take control and ownership of their solutions rather than having a third party, such as a judge or arbitrator, impose a solution upon them.

The mediation process usually involves a pre-mediation meeting with each of the parties to identify issues and assess whether the case is suitable for mediation. Fear of violence or an existing restraining order would indicate that mediation is not appropriate. Sometimes, the mediator will schedule more than one mediation session.

Mediation can take place with or without counsel present. Each case will dictate the appropriateness of having counsel present or not.  If your client decides that he or she wants to attend mediation without you as counsel, you should make yourself available to provide legal advice.  Alternatively, advise the client not to agree to anything final until he or she has been able to consult you for legal advice.

Mediation is generally far less expensive than paying counsel to prepare and attend trial. Frequently, the parties agree to share the cost of mediation.

The Family Law Act includes mediation among the recognized “family dispute resolution” processes to which the court can refer parties.

Collaborative Family Law

The collaborative family law process is a form of intensive negotiation that attempts to address the emotional dimensions of separation along with the legal issues, and which requires the parties and their lawyers commit to finding a resolution without litigation. Collaborative practitioners are qualified family law mediators, have extensive additional training in collaborative processes, and will be affiliated with a multidisciplinary practice group composed of collaborative lawyers, psychologists and counselors.

Lawyers and clients engaging in the collaborative process first sign an agreement that they not to resort to litigation. If court becomes inevitable, the lawyers must withdraw. There are a series of four-way meetings between the parties and their counsel, directed at identifying the problems that need to be addressed for each party and discussing solutions. Divorce coaches, financial planners and child specialists often assist in identifying concerns and issues, facilitating communication, developing co-parenting skills or strategies, and addressing emotional issues.

When a dispute is resolved, the settlement may be recorded as either a separation agreement or consent order, although separation agreements are the more common option.

The collaborative process is generally less costly and more satisfying to willing participants than litigation, although it is generally more expensive than negotiation and mediation. It can be an efficient and practical means of resolving your client’s concerns.

Local collaborative law groups can be located on the Internet (Vancouver: www.collaborativedivorcebc.com  ; Victoria: www.collaborativefamilylawgroup.com, All of BC: BC Collaborative Roster Society ) Other local groups are active throughout the province.

Additional resources on collaborative law can be located at the BC Courthouse Library website in the Practice Portal for Family Law.

The Family Law Act includes collaborative processes among the recognized “family dispute resolution” processes to which the court can refer parties.

Arbitration

Arbitration is another alternative to litigation. It is presently the least used of the alternative dispute resolution mechanisms, but can provide a quick, final and private resolution to family law disputes.

In arbitration, the parties to a dispute agree that a neutral third-party, an arbitrator, will hear their evidence and arguments, and make an award finally resolving all or part of their dispute. In addition to selecting the arbitrator the parties believe is best suited to the matters at issue, the parties can choose the rules of process, procedure and evidence which will be followed during the arbitration process.

It is important to remember that arbitration is not a form of counselling, mediation or assisted negotiation. It is a formal, quasi-judicial procedure that observes the principles of fundamental justice and due process and requires the strict impartiality of the arbitrator.

The BC Supreme Court has released its first decision involving an appeal from the decision of an arbitrator pursuant to the Family Law Act and the corresponding amendments to the Arbitration Act.  In McMillan v. McMillan, 2015 BCSC 2177, the court considers and discusses the test on appeal and the standard of review.  The decision was upheld by the BC Court of Appeal and a useful discussion is included in McMillan v. McMillan, 2016 BCCA 441.

Parenting Coordination

Parenting coordination is a process in which the parties agree or are ordered to retain a neutral parenting coordinator to assist them in carrying out a parenting plan established by court order or a separation agreement.  In many situations, typically high-conflict situations, disputes between parents may arise over parenting decisions, children’s activities and schooling, access, and special problems involving illness, employment, holidays and vacations. Parenting coordinators are retained to deal with such issues for lengthy terms ranging from six months to two years.

Parenting coordination is addressed specifically at sections 14 to 19 of the FLA.  Parenting coordination can be ordered by the court over the objections of one or both of the parties.

Parenting coordinators attempt to resolve disputes by helping the parties reach consensus through mediation-like process. Where consensus cannot be reached or a resolution must be reached on short- or no-notice, parenting coordinators may make determinations resolving the dispute in an arbitration-like process. Parenting coordinators’ determinations are binding on the parties, although they may have the decisions reviewed pursuant to s. 19 of the FLA.  The court has now released a decision regarding the standard of review pursuant to s. 19 of the FLA.  In Law v. Cheng, 2017 BCSC 328, the court found that a determination by a parenting coordinator should be accorded the same deference as an arbitration award and subject to review on the same standard as reasonableness.

Parenting coordinators do not have the authority to substantially change the terms of a parenting plan, alter custody, or make long-term adjustments of access.  While the services of parenting coordinators can be expensive, in many situations, especially where there is high emotional conflict, the expense is less than the cost of ongoing court applications.  For further information, including a list of qualified BC parenting coordinators, see www.bcparentingcoordinators.com.

Community Discussion

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As in previous discussion, the relationship between a lawyer and a client is about fit. The same goes for the client and a parenting coordinator, a mediator, and so on. For a high conflict case a certain mediator may be more helpful than another, and this must be paid close attention to. Furthermore, the onus is on the lawyer to enquire into all possible financial disclosure. If a client is providing figures that do not add up, the lawyer has to ensure to ask further questions with respect to financial disclosure.