New provision places duty on parties to try and resolve issues out of court
As the pandemic has produced a rise in divorces and family disputes, the recent enactment of Divorce Act amendments will give a boost to collaborative family law and have more clients resolving their issues outside of a courtroom, say two family law lawyers.
The Divorce Act amendments came into force March 1. Among the changes is the new s. 7.3, which states that parties to a proceeding under the Act now have the duty to deal with conflicts through a family dispute resolution process. Nathalie Boutet and Russell Alexander both offer collaborative law services and say s. 7.3 will lead more clients to choose that option.
“There's very strong encouragement for people to resolve things outside of the court process,” says Boutet, who runs Boutet Family Law and Mediation. “That's very exciting.”
The new provision clarifies what was “kind of covered” in the old s. 9 of the Act, which encouraged lawyers to inform clients of counselling and other services in the community, says Alexander. It is much clearer now and places the onus on everyone to resolve as many issues as they can without a judge, he says. Alexander is founder and senior partner at RIA Collaborative Family Lawyers.
“And I think that’s going to be a boon for family lawyers who practice collaborative practice. They're trained to resolve matters outside of court. They agree not to go to court as part of the participation agreement when they do things collaboratively. So I think collaborative lawyers are really set up well to adapt to the new changes.”
Collaborative law is an alternative dispute resolution process which involves a lawyer, for each party, who has special training in “interest-based” negotiation, says Boutet. The practice is suited to matters where there is a power imbalance between parties and lawyers are nervous sending their client to mediation, she says.
“Because there's always two lawyers present,” she says. “So in difficult cases where there's power imbalance, the lawyer is there to support the client in the negotiations. So it kind of rebalances the power.”
Boutet says she would like to a see more information provided to the public about out-of-court options such as collaborative practice. They are otherwise likely to contact a lawyer who either does not support those processes or does not believe the particular case is fit for the collaborative option. There is a belief that cases with certain components or which are “tough” must be slugged out in the courts, she says.
“But I think we are invited to open our minds to the fact that it's time to have the difficult cases resolved through these processes,” says Boutet.
The amendments also broaden the definition of family violence to include psychological and financial abuse and harming or threatening to harm animals. It is significant both these changes are happening at the same time, says Boutet. It shows Canada is ready to employ collaborative practice in difficult cases, including those involving family violence, she says.
“Not everyone is trained at the same level to detect and handle family violence cases. But there's a lot of people that are trained in that and we're always only a phone call away from someone with a lot of experience to guide us if we're not sure how to do it,” says Boutet. “Or you can bring in family professionals, social workers, maybe psychologists, to work on your files.”
