What is the collaborative process?

Collaborative law is a way of making legal decisions for your separation or divorce without going to court. Like mediation, it is an alternative resolution process. Both clients meet with their lawyers, and any other divorce team professionals, to work out all the issues. The lawyers are hired as settlement lawyers only, they may not threaten to go to court or go to court for their client.

What is collaborative law?

It is the same thing as collaborative process.

What are the advantages of the collaborative process?

– Each party is represented by his or her lawyer from the beginning.
– The lawyers (and clients) all work on settlement, without the distraction of preparing for court.
– No threats of Ill see you in court.
– Focus on creative solutions rather than emotional arguments.
– The lawyers are available to give legal advice in meetings while negotiations happen.
– The party can pick a divorce team and use professionals in an efficient way to solve the issues.

What is the disqualification provision?

The term means, that if the collaborative process breaks down the lawyers have to withdraw from representing their clients. The parties must hire new lawyers to go to court. The disqualification provision is part of the contract the parties sign in the collaborative process, which commits the lawyers to being involved for settlement only.

We plan to do our divorce without lawyers because we are afraid that lawyers will turn it into a battle. Why would we want a collaborative process?

The collaborative process would be worth considering. The lawyers are not able to turn the case into a battle. This process provides all the advantages to each person by having their lawyer give legal advice and assistance without court. The lawyers are committed to working cooperatively with each other and to help the parties look at other team members who can resolve their separation in a more efficient way. A separation agreement can have long reaching financial and parental impacts, understanding what you are doing and signing should be of great value to you.

Can any lawyer do the collaborative process?

Because of the difference from litigation, special training is required for lawyers to do this. In Ontario, all collaborative process lawyers must have a minimum of 16 hours of training in this process. Most of the collaborative associations in Ontario require 32 hours of training. To find a collaborative lawyer, you must find one who is registered through a collaborative association through www.oclf.ca.

How do I persuade my spouse to use the collaborative process?

A soft sell approach is usually best. Give your spouse the information about the process including how to get more information. You can suggest to your spouse that this process usually reduces conflict at separation and helps each person be heard in a respectful way without thousands of dollars being spent through court. You may want to suggest that he or she have an initial meeting with one of the lawyers trained in the collaborative process in your area.

What if my spouse already has a lawyer, a person who is not trained in the collaborative process? What can I do?

Both spouses must agree to use collaboratively trained lawyers for the process to happen. This means they both must have lawyers who are enrolled through www.oclf.ca. You still may want to tell your spouse about the collaborative process option so that they are aware it is another process choice that is available to them. They then need to make the decision as to whether or not they want to do that process.

Does a collaborative divorce cost less?

Reaching an agreement on all of the issues in divorce typically means less fees than if you went to court. This can be true whether you use the collaborative process, you mediate or you reach an agreement directly through negotiation.

Which is better, collaborative practice or mediation?

Both are excellent processes. The answer depends on which would work best for your situation. In mediation, the parties work directly with a neutral mediator who assists them. Typically, no one else is in the room with them helping them in that process. If each person is confident in their understanding of the law and their ability to put their interests forward, then mediation does work well. In the collaborative process, there is no neutral person and instead the process is guided by each persons lawyer working directly with the parties. The lawyers set the agenda with the parties and manage the process. They help their clients understand the law and their options all the way through the negotiation.

Where can I get more information on the collaborative process?

Many people have more questions about Collaborative Law and whether it’s the right approach for them. The Ontario Collaborative Law Federation provides plenty of information to help people understand how Collaborative Law works. For extensive details about Collaborative Law visit oclf.ca

We would also recommend the book “The Collaborative Way to Divorce: The Revolutionary Method That Results in Less Stress, Lower Cost and Happier Kids – Without Going to Court” by Stuart G. Webb and Ronald D. Ousky.
This video (from oclf.ca) explains in detail the benefits of Collaborative Law.

The Basics of Custody and Access:

The key points to remember are the definitions of custody and access. Custody is not what the majority of people believe it to be. People generally believe custody is where the children live primarily. In fact, custody is the decision making responsibility in regards to children. If a person has sole custody, then that person in responsible for making all of the big ticket life decisions for a child. For example: where a child goes to school, what language the child would be raised in and what medical treatments would be provided to a child. Joint custody means that both parents would have equal entitlement to make those decisions for the child.

Custody is really identifying who has the rights and responsibilities to decide the best interests of a child.

Access is another thing entirely. Access is a right to visit with and be visited by the child and to be given information about the child. Such information could be health, education and general welfare information.

The Childrens Law Reform Act of Ontario states that the father and the mother are equally entitled to custody of the child, except where there may be circumstances showing otherwise. Generally, if each person is a sound and responsible parent, they would each be entitled to share custody.

Divorce/Separation:

Many research studies have shown that when a childs parents separate, the most damaging thing to a child is conflict between the parents. If parents are hostile towards each other they can be guaranteed their children will suffer.

How Are Custody Decisions Made:

Most parenting and custody decisions are made by the parents using informal negotiation, mediation, the collaborative process, negotiation through their lawyers or a combination of those. Relatively few are not able to make an agreement and end up using the court process to have a judge decide custody and access. The court process is expensive, disruptive and emotionally draining. If each parent hired a lawyer they could each expect to pay a minimum of $20,000 in legal fees.

It can be much less expensive to use mediation or the collaborative process if the parents are unable to agree in direct negotiations.

The Custody/Parenting Plan:

There are many subjects that need to be resolved when addressing the custody/parenting plan. If the parties are able to agree on custody, the parenting plan, being the access that each one has, requires detail and attention. In the parenting plan the parties need to agree upon the basic schedule of time that each parent will be providing care to their child (typically over a two-week schedule), and they then need to continue to consider many other events. Typical items that need to be included are all major holidays each year, Mothers Day and Fathers Day, school summer holidays, the childrens birthdays and the parents birthdays and any other special event days for the family. Following from that the parties have to discuss passports, travel permissions and any other needs should their children have particular requirements.

Difficulties:

If the parents are unable to agree on a parenting schedule or custody they can, within the collaborative process, share the cost of retaining a family relations professional. This is a person who is trained in helping separating parents resolve issues around parenting, and they typically have social work experience. They are not lawyers. In a court situation the parties could hire a custody and access evaluator who will do an assessment on the parties. This can be considerably expensive.

Assumptions in Ontario:

There is no such thing as any assumption about what parenting schedules should look like in Ontario. The parenting schedule is reached by one question only, and that is what is in the best interests of this particular child. To answer the question of a childs needs and circumstances there are many factors to be considered. Those factors include the relationship between a parent and child, the childs views on this if they can be relevant due to the childs age, the length of time the child has lived in a stable home, the ability of each person to provide the child with guidance and education and the necessaries of life, the plan of each parent for the childs care, the stability of each parent and the relationship by blood or by adoption to a person who is asking for custody.

For specific information on your situation, please make an appointment at our offices.

The Basics of Property Division:

Property or asset division is a key issue in many divorces. Under Ontario law, all assets belonging to the spouses (and that means individually or jointly) are matrimonial property to be divided. Even if an asset is held in one spouses name it may be divided or given to the other spouse in property settlements.

Property in the legal sense includes everything – real estate, household contents, vehicles, bank accounts, stocks and bonds, pensions, RRSPs and anything else either of you would own.

There are certain things in Ontario that are not included in family property. These include such things as items you may have inherited, received as a gift from a third person or monies you may have received for pain and suffering for an injury to name a few.

How Property is Divided:

The law states that net family property should be equalized. Equalized meaning that each spouse, when you subtract their debts and items that are not included, should have an equal property to the other spouse. Please note that each asset need not be divided equally. Instead, the total value of all property, minus debts and any excluded items, are divided.

There are certain cases when it is not divided equally based upon the circumstances. Those circumstances can be in very short marriages, the amount of debts and whether it was incurred recklessly and the hiding of debt, to name a few circumstances.

Fault:

It is important to know that in Ontario the reason for the divorce, whether that be infidelity or substance abuse, does not by itself change the application of equal division. If your spouse has had an affair, that does not mean the innocent spouse keeps any more of the property.

How Decisions are Made:

If the parties reach an agreement, they can divide their assets however they wish. Most divorcing couples do this whether they work by themselves, with a mediator or through the collaborative process.

If they cannot agree in any way, then they may end up bringing their matter to the court and the court will decide.

Keep in Mind:

If you and your spouse can make an agreement either with mediation, the collaborative process, or directly between the two of you, and you have legal advice, and make each other aware of all your assets and debts, you can create an agreement without going to court. Most divorcing couples do work out an agreement without requiring a court to decide for them.

To get an understanding of what sort of details you will need to sort out in order to properly resolve your estate, visit the Attorney General of Ontario’s website. They answer all of the essential questions about wills, trusts, death benefits and estate tax.

Ever wonder what happens if you die without a will? Watch this video to find out.


“Clear-Eyed coping to help your child”

Many families have found this article by Jacqueline Singer to be helpful in understanding the consequences of divorce. Download the article

Help from Sesame Street

When a family separates children are often left with a great deal of questions. Sesame Street has created a great series of videos that deal with many of those questions.