By Sean Schaefer
Most family law disputes in Alberta do not end up in court. Avoiding a trial will save both parties money and it leads to quicker resolution. If your divorce is amicable, we can help you negotiate a settlement that will be approved by the courts. If that is not possible, the lawyers at Demas Schaefer know how to achieve the best results for clients through mediation, arbitration and litigation. Allow me to explain the advantages of all these options and how to decide which is best for you.
Federal/provincial jurisdiction
Legislation from both the federal and provincial governments must be considered when it comes to family law in Alberta. The team at Demas Schaefer are versed in both, as either may be a factor depending on the particular circumstances of your situation.
On the federal level, Parliament made changes to the Divorce Act in 2019 that affected family dispute resolution. According to the federal government, “The Divorce Act says that you need to try to solve your family law issues by using family dispute resolution, if it is appropriate.”
It adds that legal counsel “now have a duty to encourage you – as their client – to try to solve issues through a family dispute resolution process, unless it would be clearly inappropriate to do so.”
The Act applies to married couples who have legally separated and are seeking a divorce. It also dictates the rules dealing with custody, parenting arrangements and child and spousal support in the context of a divorce.
On a provincial level, Alberta’s Family Law Act (FLA) deals with non-divorce situations. This includes dealing with issues such as:
- who are the parents of a child, including cases where the child was conceived through assisted reproduction; • who are the guardians of a child;
- what are the rights and obligations of parents and guardians;
- creating parenting orders in cases where guardians who are living apart cannot agree on their respective parenting responsibilities;
- what the level of contact between children and other people who might be important to them, such as grandparents, should be;
- the amount of child support; and
- what support for spouses or adult interdependent (formerly known as common law) partners require.
There is no requirement for dispute resolution under the Family Law Act, however, the Courts will still mandate an Alternative Dispute Resolution Process prior to going to trial.
The advantages of mediation
Many of the lawyers at Demas Schaefer are trained mediators. After a divorce or separation, we bring both sides together in an effort to resolve such issues as child custody and parenting time, property and debt division, and spousal support. It is important to note that both sides must agree to mediation.
Mediated sessions are always conducted with integrity. We strive to help find the best solution for each side, while always keeping the best interests of the children in the relationship at the forefront.
Many people do not want to endure the stress and expense of going to court to settle these matters. That is why mediated settlements are often the best option. When we reach a settlement, both sides realize they played an important part in crafting that agreement and will be more likely to abide by it.
Other advantages of mediation include:
- you have more of a say in the decision-making process, as compared to the court handing down a ruling;
- the process is less adversarial than litigation, reducing the tension between ex-partners;
- the process is easier on the children, who do not have to witness tension-filled court proceedings;
- mediation is quicker and less expensive than litigation; and
- agreements can go into greater detail than what a court judgment may offer.
Keep in mind that any successful mediated negotiation will require some level of compromise from both parties. Neither side can expect to get everything they want. However, once a settlement is reached, both spouses must commit to it in writing. This legally binding agreement is then submitted to the court for approval.
If the mediation fails, then the parties can move to arbitration or to court. In both of those cases, the decision reached will be binding on both parties.
Arbitration is another option
Arbitration resembles a court hearing, though it is held in private instead of before a judge. Both partners must voluntarily consent to the process and agree to forego their right to litigation. And while the arbitrator’s decision is binding, any ruling would be subject to an agreed-upon right of appeal.
One of the key advantages of arbitration over litigation is that both sides get to agree on who will act as an arbitrator. In some cases, people will use a combination of mediation and arbitration, falling back on the second if the first fails.
Litigation is sometimes the only avenue
Negotiation may not work with certain types of family law issues. These include if there is family violence or a power imbalance, or concerns for someone’s safety. Litigation is also the only option if mediation has failed and one party does not agree to arbitration.
Court proceedings in family law are governed by Alberta’s Family Law Act and can be commenced with an application for new matters or a motion to change for matters regarding previously made orders. The Court of King's Bench of Alberta has sole jurisdiction over divorce and the division of property and presides over matters involving child and spousal support and child custody and access.
A judge will decide on the outstanding issues, which usually involve such matters as property division, child custody, spousal support and child support. In all cases, Alberta’s court will put the interests of any children first in a divorce.
Litigation is an adversarial process, with the two former partners and other witnesses required to testify and be cross-examined in open court. That can be very stressful for some people.
We provide the assistance you need
Whether you choose negotiation, mediation, arbitration or litigation, the team at Demas Schaefer Family Lawyers will work to protect your best interests. We advise clients to compare the projected cost of litigation to the value of any issues in dispute. The legal fees and aggravation involved in going to court provide a major incentive to avoid litigation. Set up an appointment with one of our experienced family and divorce lawyers today. We offer a free 15-minute telephone or video consultation so you can see how we can help.