By Mark Demas
The end of a marriage or an adult interdependent relationship is fraught with emotional challenges that may seem impossible to overcome. You are turning the page on a chapter of what was once a meaningful part of your life and will be expected to make decisions that are likely to have a significant impact on your future.
It can be difficult to acknowledge that a relationship has ended and even more difficult dealing with the aftermath. According to MentalHealth.com, divorce can be one of life’s most stressful events.
“It disrupts not just routines and finances but also deeply held beliefs about identity, trust, and security,” the website states. “Common emotional responses include sadness, anger, anxiety, and relief, all of which can coexist and shift rapidly. For many, divorce resembles a grieving process, complete with denial, bargaining, and acceptance stages. These intense emotions can affect appetite, sleep, and concentration.”
Those unfamiliar with divorce may believe that the path to ending a relationship necessitates a trial in family court. However, that is not necessarily the case. In fact, Statistics Canada has reported that in this country, “the vast majority of divorce cases are resolved before reaching the trial stage.”
StatsCan reported “there are many methods through which parties may come to an agreement on issues related to a divorce and therefore avoid going to trial before a judge.”
Even if a divorce is contentious, it can make more sense to consider Alternative Dispute Resolution (ADR) to settle your issues. It is typically much less stressful while saving time and money.
At Demas Schaefer Family Lawyers we are experienced divorce and family law litigators able to fight for your rights in a court of law. However, we are also trained collaborative lawyers and mediators with experience in ADR and arbitration processes. Our team can find the right solution to guide you through this challenging time in your life.
The law in Alberta
There are a number of laws both federally and provincially that come into play when a marriage ends. In Alberta the Family Law Act applies to non-divorce situations, involving such issues as determining:
- parentage, including cases where the child was conceived through assisted reproduction;
- a child’s legal guardians;
- the rights and obligations of parents and guardians;
- the amount of contact between children and others important to them, such as grandparents or aunts and uncles;
- the amount of child support; and
- the amount of support for spouses or adult interdependent partners.
Federally, you are guided by the Divorce Act, which governs the grounds for divorce and sets rules on how parenting, decision-making, and financial matters are dealt with in court. It also deals with contact orders involving non-parents and mobility.
Also keep in mind the Alberta Justice Family Justice Strategy. This Strategy is “Alberta's approach to expanding pre-court services, such as counselling and mediation, to address family law matters through simpler and less adversarial processes.”
Before you can begin any family law action in this province, you must complete the online Parenting After Separation Course if it is applicable. Self-represented parties with dependent children must meet with a Family Court Counsellor. You must also provide financial disclosure and participate in an Alternative Dispute Resolution process.
According to the justice ministry, “resolving family matters outside of the courts can reduce stress on children and families. Alberta’s government is improving the family justice system to help Albertans, particularly those who represent themselves in matters like divorces, spousal support agreements, parenting arrangements or child support orders, resolve family law issues faster.”
What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) “traditionally refers to the wide variety of methods used to resolve conflicts and disputes outside the courtroom,” according to the Department of Justice (DoJ).
“It includes both informal, consensual processes such as negotiation as well as formal rights-based processes such as litigation,” states the DoJ.
“With ADR, people can usually settle their differences in ways that are more informal, less expensive, and often quicker than formal court proceedings. Some parties prefer confidentiality and to have greater control over the selection of individuals who will decide their dispute and the rules that will govern the proceedings.”
Some form of family law ADR, which includes negotiation, mediation, arbitration and collaborative divorce, must be engaged in prior to being permitted to attend before a court.
At the end of your relationship, you can choose to negotiate with your former partner. This is considered an informal ADR option. You can do this with or without a lawyer, although it is in your best interest to seek legal advice before signing off on any agreement you reach to ensure your rights are protected. Indeed, unless you sign with a lawyer the court may elect not to enforce the agreement reached.
Mediation is a process where a neutral, third-party mediator helps couples communicate. A mediator does not make a final decision but attempts to guide both sides to a mutually acceptable agreement. If mediation is not successful, the parties can move to arbitration.
Arbitration is a more formal process. A neutral arbitrator jointly selected by both sides acts like a judge. They listen to submissions and make a decision that is binding.
In a collaborative divorce each person hires a collaborative-trained family lawyer. There is no neutral third party. Instead, both spouses and their lawyers work to reach an agreement. A key component of a collaborative divorce is that you and your ex sign a contract which, among other things, prohibits you from going to court or threatening to go to court while you are engaged in the process. Experts, including financial specialists and mental health professionals may be called in as you work toward a settlement. It should be noted that unlike mediation where you can continue to work with your lawyer if you don't reach a settlement, collaborative lawyers must withdraw from the case if you are unable to come to an agreement under this process.
ADR offers several advantages
Some people want their day in court, especially in an acrimonious breakup. However, going to trial can be costly in a number of ways. First, a contested divorce with a trial costs significantly more than reaching an agreed settlement through an Alternative Dispute Resolution process.
If you go to trial, you are handing over the reins of control to a judge who may not see things the way you do. By employing one of the methods of ADR, you will have more say in important decisions regarding your finances and children and you will have a bigger hand in shaping your future.
Going to court can be emotionally draining. Resolving your conflicts outside of court can reduce stress. Typically, it is also a much faster process than going to trial. ADR also offers greater flexibility, allowing you to choose the process.
Another added bonus is that ADR proceedings are private, whereas some court records (and trials) can be open to the public.
Mark Demas and Sean Schaefer are trained mediators and each have collaborative family law training.
Divorce is very often burdensome and family law is complex. At Demas Schaefer Family Lawyers, we will support you with sound advice and guide you in each step you take in the process. We offer a free 15-minute telephone or video consultation to discuss your case and explain your options. Contact us today for an appointment.