Changes to the Divorce Act came into effect in March 2021 that will affect the way lawyers talk to our clients about divorce. There is now a clearly stated obligation for family lawyers to specifically discuss consensual dispute resolution options, including negotiation, collaborative family law and mediation, with our clients.
Collaborative family law has been around for decades; however, many separating couples have never heard of it as an option for their divorce. Collaboration is a process where the two spouses and their lawyers sign a contract stating they will not go to court or threaten to go to court while attempting to settle issues such as how to coparent the children and how to divide the assets and debts. This commitment to resolving matters outside of court assists in creating an environment that is settlement focused.
In collaborative process, as in family law generally, we emphasize the need to provide all financial documentation and information necessary for the couple to make fully informed decisions before those decisions are made. When we collaborate, clients have access to family and financial professionals who are jointly retained and provide assistance to the couple as we work through various topics (parenting, business valuation, pension division etc.).
For example, when there is a business, a collaboratively trained financial professional who is also a certified business valuator will gather the company’s financial statements, corporate returns and additional information required to value the business. The financial professional will explain the business valuation to the couple, answer questions, and provide information and clarification as needed. The involvement of one financial professional who is accessible to both spouses avoids retaining two “battling experts” and the cost, suspicion, and argument that may result from doing so. If one spouse has been more involved with the business or with the finances generally, the financial professional is there to inform and answer questions from the spouse who has been less involved to ensure both spouses are operating from a similar knowledge base when making decisions.
Financial professionals can also assist with budgets, support projections, calculation of income for support purposes, and the calculation of retirement income needs.
A family professional will screen the couple for Intimate Partner Violence and Power Imbalance (this screening also became mandatory when the Divorce Act changes came into force in March). Following screening, the family professional often remains involved to assist the couple with the development of a parenting plan or to assist with process design (when there are safety concerns). Family professionals often coach the couple toward more neutral and effective communication, which is particularly helpful to coparents.
Each family is different. Collaboration provides wrap-around services that are designed to support the family in the unique ways the family needs to be supported. Instead of two lawyers wearing many hats, the lawyers provide advice and expertise about what we know – the law. Lawyers also assist by brainstorming options with the clients and facilitating disclosure. The family and financial professionals provide assistance in their areas of expertise – finances, valuation, budgeting, parenting, and communication.
Parenting plans, for example, can be developed in a triad comprised of the two clients and the family professional. The lawyers assist after the parenting plan has been created by performing a legal review of the parenting plan with our clients. This is an example of how collaborative meetings are structured to meet our clients’ needs while being mindful of cost.
Depending on needs and circumstances we may use triads (the two clients plus the family or financial professional), quads (the two clients and two lawyers) and the full team (two lawyers, two clients plus the family and/or financial professional). We tailor the meetings based on the expertise that is required, and we work hard to preserve the coparenting relationship, enhance the clients’ communication, and empower them to develop agreements that will stand the test of time.
Debbie P. Hoffman is a founding partner of HD Collaborative Process and a member of the Collaborative Practice Group at Collaborative Divorce Waterloo Region in Waterloo, Ontario. Debbie is a collaborative Legal Professional, Family Law Lawyer, Mediator, Collaborative Team Trainer, Divorce and Communication Coach. She can be found at www.hdcollaborativelaw.com and reached at [email protected] and @thedivorceguide.ca on Instagram.