Resolving Family Law Problems out of Court

Family law problems can be resolved in a bunch of different ways. Court is not the only option. In fact, depending on your circumstances, you may never need to darken the doorway of a courtroom.

Almost every issue people face when their relationships breaks down can be handled without going to court, as long as everyone is able to discuss those issues in a cooperative, reasonable and respectful manner, and everyone is flexible enough to compromise. The only reason why people leaving a relationship have to start a court proceeding is to get a divorce order, and that's only important if people are married to each other.

There are many reasons why it is generally better to resolve things out of court. Agreements that people make cooperatively tend to be longer-lasting and are more likely to leave everyone satisfied with the result than if someone else — a judge or an arbitrator — imposes a resolution. As well, resolving family law problems out of court is often far quicker and far less expensive than resolving them in court. This isn't to say out of court processes are cheap. They still require you to make a financial investment.

This chapter talks about how family law problems can be resolved without going to court. It begins with a brief overview of the different out-of-court options and the different ways that settlements and agreements can be recorded. It also reviews what can happen when someone has a change of heart after an agreement has been reached. The other sections in this chapter discuss the different dispute resolution options — collaborative negotiation, mediation, arbitration, and parenting coordination — in more detail.

Introduction

The fundamental goal shared by all out-of-court dispute resolution processes is to reach a settlement of the legal issues, particularly those issues that people could have fought about in court. As you might expect, reaching a settlement can require a certain amount of flexibility, empathy and maturity. Most importantly, the people involved must understand that none of them is going to get everything they want in a settlement. Whatever a person's wish list might be going into negotiations, the end result always represents a compromise and some accommodation of someone else's goals, hopes, and expectations.

It's not always possible to avoid court. Sometimes someone is so stubborn that they can't or won't compromise their position, and sometimes urgent court action is necessary to stop something bad from happening, like property being damaged, someone being hurt, or a child being taken out of the country. But out-of-court processes always offer a cheaper, friendlier and faster resolution to the legal problems that come up when a relationship ends than going to court. They're also far less stressful and disruptive to the people involved, and to their children.

It is particularly important to negotiate a settlement when children are involved. Where there are no children, people can walk away from their relationship and have nothing more to do with each another for the rest of their lives. However, where there are children, parents can expect to be involved with each other — whether they like it or not — for the rest of their lives. Each of them will want to be at their children's high school graduation, attend parent-teacher meetings, and go to school concerts and sports days. The children will want their parents to be there too. As a result, maintaining a functioning relationship is an absolute necessity. Resolving family law problems out of court gives parents the best chance of doing just that.

For more information about parenting after a relationship has ended and how to put the children first in your dispute with the other parent, see the section on Parenting after Separation in the chapter Children and Parenting after Separation. For more information about the emotional issues that tend to come with the end of a long-term relationship and how to keep those issues from hopelessly complicating your dispute, see the section Separating Emotionally in the chapter Separating and Getting Divorced.

The legislation on family law problems and out-of-court options

Both the federal Divorce Act and British Columbia's Family Law Act now talk about the importance of resolving legal disputes out of court.

This is a big change from how the law used to be. Before 2020, all the Divorce Act had to say about this issue was to require lawyers to discuss with their clients "the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters." The old Family Relations Act, the law in British Columbia before the Family Law Act came into force in 2013, didn't say a word about mediation or the other alternatives to court.

The Family Law Act

According to the Ministry of Justice's guide to the Family Law Act, the legislation was written to encourage people to resolve family law problems without having to go to court. The Ministry has said that the Family Law Act "emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort." The Ministry has also said that:

"This focus on family dispute resolution signals an important shift from the Family Relations Act, which was criticized for being litigation-focused and for assuming that every dispute would end in a trial."

The act supports the resolution of family law disputes outside of court by:

• requiring lawyers to explain the different dispute resolution processes to their clients, under sections 4 and 8,
• requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, under section 5, even when they're not in court,
• allowing parenting coordinators to be used to resolve disputes about parenting once a final order, award or agreement about children's parenting arrangements has been reached, under sections 15 to 19,
• including mediation and collaborative negotiation as dispute resolution processes to which the court can refer people, under sections 1 and 224,
• changing the rules about arbitration to better accommodate the arbitration of family law disputes, in sections 19.1 to 19.22, and
• allowing the court to delay a proceeding while the parties attempt to resolve a family law dispute out of court, under section 223.

The act also allows the court to require the people involved in a court proceeding to try to resolve their dispute out of court, and to attend counselling if the court thinks that counselling would be helpful. Section 224 says that:

(1) A court may make an order to do one or both of the following:

(a) require the parties to participate in family dispute resolution;

(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.

(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.

That's pretty cool, and a huge change from the old Family Relations Act, which didn't talk about out-of-court dispute resolution processes at all, except in terms of how agreements could be enforced or cancelled.

This change in the Family Law Act has laid the groundwork for changing how families interact with the court system. A pilot project launched in May 2019 at the Provincial Court in Victoria encourages parties to resolve matters by agreement. The Victoria Early Resolution & Case Management Model provides family case management earlier in the court process, and tries to refer people in appropriate cases to either mediation or collaborative negotiation before appearing before a judge in court.

The Divorce Act

The Divorce Act was changed in March 2021 to address some of the same goals as British Columbia's Family Law Act when it comes to resolving family law disputes. Section 7.3 puts a new duty on spouses:

To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

while section 7.7 puts a similar duty on lawyers:

(2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act

(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;

(b) to inform the person of the family justice services known to the legal adviser that might assist the person

(i) in resolving the matters that may be the subject of an order under this Act, and

(ii) in complying with any order or decision made under this Act; and

(c) to inform the person of the parties’ duties under this Act.

The guide published by the Department of Justice says that these provisions are intended to encourage spouses to try to resolve their differences out of court using processes including negotiation, mediation and collaborative negotiation. The guide says that:

"In most cases, family dispute resolution processes tend to be faster, less expensive and more effective than court proceedings. They are also more likely to serve the interests of the child. A greater variety of such processes are available than ever before, including mediation, negotiation and collaborative law. The phrase 'it would clearly not be appropriate' means that legal advisers do not have to encourage family dispute resolution in some situations, such as when family violence poses safety risks."

As well, section 16.1, which talks about parenting orders, allows the court to make an order directing the parties to "attend a family dispute resolution process." The guide says that:

"This amendment aims to encourage parties to attempt to resolve disputes through a 'family dispute resolution process', such as mediation, negotiation or collaborative law. ... The court may, for example, order that for future disputes, the parties attempt some form of family dispute resolution before bringing the matter to court."

However, because only the provincial governments have jurisdiction over contracts, including separation agreements, this is really about as far as the federal government can go in encouraging people to resolve their disputes out of court.

The fine print under the Family Law Act

Alright. So we know that the Family Law Act is intended to promote and support people to resolve their family law disputes out of court rather than in court. That's important, but there are some important details about how the legislation does this. First, the act talks about the importance of making proper disclosure, and encourages proper disclosure by making sure that everyone knows that information that is disclosed is private and confidential, and can't be used for purposes other than resolving the family law dispute. Section 5 says this:

(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.

(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.

Since family law disputes that are resolved out of court are usually going to be resolved with a separation agreement — although those family law disputes which are addressed through arbitration will result in an arbitrator's award — section 6 says this:

(1) Subject to this Act, 2 or more persons may make an agreement

(a) to resolve a family law dispute, or

(b) respecting

(i) a matter that may be the subject of a family law dispute in the future,

(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or

(iii) the implementation of an agreement or order.

(2) A single agreement may be made respecting one or more matters.

(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.

(4) Subsection (3) applies whether or not

(a) there is consideration,

(b) the agreement has been made with the involvement of a family dispute resolution professional, or

(c) the agreement is filed with a court.

Subsections (3) and (4) are really important. They say, in a nutshell, that people who make a family law agreement are bound by the agreement — they are legally required to do what it says — and that people are bound by their agreement whether or not the agreement was made with a "family dispute resolution professional." That's kind of cool, because it means that family law agreements are presumed to be binding on the people who make them, regardless of how they make them.

However, section 198(5) says that the time limits within which people must apply for orders for the payment of spousal support and the division of property are suspended "during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional." A time limit is a period of time, often two years, within which someone must start a court proceeding, or their right to start that court proceeding will be lost forever. All of a sudden, who is and isn't a "family dispute resolution professional" is important.

Section 1 provides this definition:

"family dispute resolution professional" means any of the following:

(b) a parenting coordinator;

(c) a lawyer advising a party in relation to a family law dispute;

(d) a mediator conducting a mediation in relation to a family law dispute, if the mediator meets the requirements set out in the regulations;

(e) an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations; ...

Let's take a closer look at who these people are. Section 1 defines a parenting coordinator as "a person who may act as a parenting coordinator under section 14." When you go to section 14, you find out that "a person meeting the requirements set out in the regulations may be a parenting coordinator." And now we need to look at the regulations. Section 6 of the Family Law Act Regulation provides the details. A "parenting coordinator" is someone who is a member of the Law Society of British Columbia and is accredited by the Law Society as a parenting coordinator. It also includes someone who:

1. is a member of the College of Psychologists of British Columbia, the British Columbia College of Social Workers, the BC Association of Clinical Counsellors, Family Mediation Canada, the Mediate BC Family Roster or the BC Parenting Coordinators Roster Society;
2. maintains professional liability insurance; and,
3. meets a list of training requirements set out in section 6(1)(b).

Under the Legal Professions Act, a lawyer is defined as someone who is as a member of the Law Society of British Columbia or a member of another Canadian law society. That's easy enough. And if you want the details about who the members of the Law Society are, you can get those from the Law Society's Rules.

The term mediator isn't defined in the Family Law Act, but section 1 does say that a person who works as a mediator must "meet the requirements set out in the regulations" if they are going to qualify as a "family dispute resolution professional" under the act. Section 4 of the Family Law Act Regulation provides the requirements. A "mediator" is someone who is a member of the Law Society of British Columbia and is accredited by the Law Society as a family law mediator. It also includes someone who:

1. is a member of Family Mediation Canada or a member of the Mediate BC Family Roster; or,
2. maintains professional liability insurance and meets a list of training requirements set out in section 4(2)(d).

The term arbitrator is also undefined in the Family Law Act. Section 1 says that a person who works as an arbitrator must "meet the requirements set out in the regulations" if they are going to qualify as a "family dispute resolution professional." Section 5 of the Family Law Act Regulation provides the requirements. An "arbitrator" is someone who is a member of the Law Society of British Columbia and is accredited by the Law Society as a family law arbitrator. It also includes someone who is a member of:

1. the College of Psychologists of British Columbia or the British Columbia College of Social Workers,
2. maintains professional liability insurance; and,
3. meets a list of training requirements set out in section 5(2)(b).

Although parenting coordinators, mediators and arbitrators are required to provide "written confirmation" that they meet the requirements set out in the Family Law Act Regulation to qualify as a "family dispute resolution professional," this is something you may want to investigate for yourself, before you hire anyone as your parenting coordinator, mediator or arbitrator. If it turns out that your family dispute resolution professional doesn't qualify as a "family dispute resolution professional" under the act and the regulations, you will not be able to take advantage of section 198(5) to claim a delay in the running of the time limits!

For family dispute resolution professionals who are lawyers, you can get this information from the Lawyer Directory on the Law Society's website. The profile of each lawyer shows how long the lawyer has been practicing law, their contact information, and their discipline history, as well as their accreditations. Here's my listing, for example:

Sample lawyer profile from the website of the Law Society of British Columbia

The sections Mediation, Arbitration, and Parenting Coordination which follow later in this chapter provide more information about the training and other requirements mediators, arbitrators, and parenting coordinators must have under the Family Law Act.

The out-of-court options

There really are only two ways to resolve a legal problem. You can work out a settlement and create your own resolution to the legal problem. Or, you can ask someone to resolve the legal problem for you.

Going to court means that you're asking a judge to resolve your legal problem. If you decide to stay out of court but still want someone to resolve your legal problem for you, you'll be resolving your dispute through arbitration. If you want to work out a settlement, you'll be resolving your dispute through negotiation, mediation or collaborative negotiation. Parenting coordination is a hybrid process that uses elements of mediation and arbitration to resolve disputes about parenting arrangements set out in a final order, award or agreement.

One of the criticisms that people often make about lawyers is that we are greedy and provoke conflict to make money. While that may be true of some lawyers, and certainly the advertising you see from lawyers in the United States tends to support this impression, the majority of Canadian family law lawyers would rather resolve family law disputes in any way other than court. In 2017, the Canadian Research Institute for Law and the Family published the results of a study of family law lawyers and their views of the different dispute resolution options. The research institute found that:

• Mediation and collaborative negotiation are viewed as the most useful dispute resolution processes for low-conflict disputes as well as disputes about the care of children and parenting, child support or spousal support, and the division of property and debt.
• Mediation and collaborative negotiation tend to result in longer-lasting resolutions than litigation.
• Cases resolved through mediation, collaborative negotiation, and arbitration take the least amount of time to conclude, while cases that are litigated take the most amount of time to resolve.
• Over 90% of the lawyers using collaborative negotiation or mediation agreed that the results they achieve are in the client’s interest, compared to only about one-third of lawyers using litigation.
• Almost all lawyers using collaborative negotiation and mediation agreed that the results they achieve are in the interest of the client’s children, compared to less than one-third of lawyers using litigation.
• When comparing the extent to which lawyers agree that their clients are satisfied with the results they achieve using the various dispute resolution processes, more lawyers agreed their clients are satisfied when they use collaborative negotiation or mediation than when they use litigation.

In other words, the majority of family law lawyers think that collaborative negotiation, mediation and arbitration are cheaper and faster than litigation, and are more likely to produce results that are in the interests of their clients and their clients' children.

Negotiation

Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and collaborative negotiation are structured ways of handling this discussion; they're both processes of negotiation.

People can negotiate the resolution of a dispute between themselves, with the help of a lawyer, or with the help of a judge at a case conference or a settlement conference if a court proceeding has started. Negotiation boils down to this:

Pat: "I'll give you 60% of the money from the sale of the house if you'll let me keep my Porsche Boxster."

Sandy: "Look, 60% is great, but I need more compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection instead?"

Pat: "You know how important my hockey card collection is to me. Let me keep my hockey cards; I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Ford Pinto."

In a process of negotiation, each person gives a little and takes a little, all in the hope that at the end of the day they'll be able to come to an agreement on all of the issues that have cropped up because of the end of their relationship.

If you do reach a settlement, you'll want to record the terms of your settlement in some way. This is really important because, without some record of the deal that was reached, there's no way to confirm what the exact terms of the deal were if people start remembering things differently. While most people record their settlement by printing out a summary of the deal and signing it, really almost any record of the terms of the settlement will do.

For a quick introduction to starting negotiations, see How Do I Start Negotiations with My Spouse?. It's located in the Helpful Guides & Common Questions part of this resource, in the section, Alternatives to Court.

Collaborative negotiation

The collaborative process is a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to reach a settlement. The team can include clinical counsellors or psychologists who work with each of the parties to address any emotional issues related to the separation and provide their expertise on parenting plans. Other specialists can be recruited to help with particular subjects, such as issues about the children or complicated financial problems, as the need arises. The goal of collaborative negotiation is to arrive at a long-lasting settlement of the parties' legal problems that, as much as possible, meets each party’s most important needs and goals, and leaves them healthy and well and able to work together in the future.

There are collaborative "practice groups" all over British Columbia. These multidisciplinary groups consist of legal professionals, mental health professionals and financial experts whose main focus is using the collaborative process to help their clients.

• BC Collaborative Roster Society (province-wide)
• Collaborative Divorce Vancouver (Vancouver and the lower mainland)
• Victoria's Collaborative Family Separation Professionals (Victoria)
• Okanagan Collaborative Family Law Group (the interior)
• Collaborative Law Group of Nelson (Nelson)
• Collaborative Association in Metro Vancouver (Surrey, New Westminster and the Fraser Valley)

More information about the collaborative process is discussed in this chapter's section on Collaborative Processes. For a quick introduction on how to start the collaborative negotiation process, see How Do I Start a Collaborative Process with My Spouse? located in the Helpful Guides & Common Questions part of this resource.

Mediation

Mediation is another kind of structured negotiation. In this process, the parties attempt to reach an agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests, and helps them to find a settlement that will work for both of them. The goal of mediation is to arrive at a settlement of some or all of the legal issues which both parties are as happy with as possible.

Mediation may be used by parties who never plan to set foot in a courtroom. It is also useful for parties who have started a court proceeding but would rather settle out of court than go through trial. The general rule is that mediation is a voluntary process. There is one exception to that rule. If you and your spouse are already parties to an action in the Supreme Court, the Notice to Mediate (Family) Regulation provides a mechanism for requiring the other side to try mediation before getting into the courtroom. To find out how to use this regulation, see JP Boyd on Family Law: The Blog.

If the parties reach a settlement, the terms of the deal can be set out in a separation agreement, in minutes of settlement, in a memorandum of agreement, or in a consent order, depending on the circumstances and the preferences of the parties. These are all ways of recording the terms of settlement. This is really important because, without some record of the deal that was reached, there's no way to confirm what the exact terms of the deal were if people start remembering things differently.

Many lawyers also work as mediators. Lawyers who work as mediators are called family law mediators. They have to have additional training in mediation, family violence, and the power dynamics involved in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both lawyers and mediators. More information about the training requirements for family law mediators is available from the Law Society of British Columbia's page on Family Law Mediators.

For a quick introduction on starting mediation, see How Do I Start Mediation with My Spouse?. It's located in the Helpful Guides & Common Questions part of this resource, in the section Alternatives to Court. For more detailed information about the mediation process, see the Mediation section of this chapter.

Arbitration

Arbitration is not a form of negotiation. It is a decision-making process that can look a lot like court.

In arbitration, the parties hire a neutral third party called an arbitrator to act as their personal judge. They agree that their arbitrator can make decisions about their legal dispute that they will be bound by, as if those decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the people involved can go through the process as quickly or as slowly as they'd like.

Arbitration is a lot more formal than mediation because the arbitration process results in a decision that is imposed on the parties, rather than an agreement which they reach themselves. Although the process includes a lot of flexibility and different procedural options, in general, in arbitration each party presents their evidence and their arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, with no formal rules of procedure and no evidence, apart from helpful things like financial statements.

The arbitration of family law problems is governed by sections 19.1 to 19.22 of the Family Law Act. It is not governed by the provincial Arbitration Act; that legislation mainly covers corporate and commercial disputes. Arbitration is, like mediation and collaborative negotiation, one of the dispute resolution processes that the court can refer people to under section 224 of the Family Law Act.

Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called family law arbitrators. They have to have practised as a lawyer for at least ten years and have additional training in arbitration, family violence, and the power dynamics involved in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they provide arbitration services. More information about the training requirements for family law arbitrators is set out in the Law Society's Code of Professional Conduct in Appendix B, and in the Law Society's Rules at Part 3, Division 3.

For a quick introduction on how to start arbitration, see How Do I Start Arbitration with My Spouse?. It's located in the Helpful Guides & Common Questions part of this resource, in the section, Alternatives to Court. For more detailed information about the arbitration process, see the Arbitration section of this chapter.

Using mediation and arbitration together

Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to use a dispute resolution process that includes a way of resolving any issues that can't be agreed to, and that might mean a process that gives the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called mediation-arbitration, sometimes shortened to med-arb.

In med-arb processes, the parties will sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached on particular issues. The agreement should say whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how any other evidence will be presented in the arbitration phase. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all of the issues or just some of them.

Parenting coordination

Parenting coordination is a hybrid dispute resolution process that relies on elements of both mediation and arbitration. It is only used to deal with problems about the care of children after a final parenting plan has been made by a court order, an arbitrator's award or a separation agreement. Parenting coordination is a child-focused process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order, award or agreement. If you and your ex don't argue about your parenting plan a lot, you don't need parenting coordination.

In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem implementing the parenting plan comes up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't reach an agreement resolving the problem, the parenting coordinator will make a decision resolving the dispute, like an arbitrator.

Parenting coordination is governed by sections 14 to 19 of the Family Law Act, and section 6 of the Family Law Act Regulation. The court can make an order requiring people to start parenting coordination under section 15 of the act.

Parenting coordinators are family law lawyers and mental health professionals who are hired for lengthy terms of between six to 24 months. Lawyers who work as parenting coordinators have to have practised as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence, and the power dynamics involved in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services. More information about the training requirements for parenting coordinators is set out in the Law Society Rules, Part 3, Division 4. More information about parenting coordination is available at the website of the BC Parenting Coordinators Roster Society.

To find out more about parenting coordinators, see How Do I Hire a Parenting Coordinator?. It's located in the Helpful Guides & Common Questions part of this resource, in the section, Alternatives to Court. For more detailed information about the parenting coordination process, see the Parenting Coordination section of this chapter.

Free and lower-cost options

Generally, people have to pay for their mediator, collaborative lawyer, arbitrator, or parenting coordinator. Sometimes these specialists charge on a sliding scale, but often the fees they charge will be in the neighbourhood of $200 to $400 per hour and up. They will also usually require the parties to pay significant retainers in advance. (A retainer is money paid to a lawyer as a deposit against the fees they will charge in the future.) These costs are the major challenge involved in getting access to legal assistance. The reality is that many people do not have the money to pay these fees or have a limited budget in which to work. Here is a list of services that may be able to assist:

• some mediation services about issues involving children and support are provided at no cost by family justice counsellors,
• pro bono assistance from a collaborative negotiation team may be available through the Pro Bono Collaborative Divorce Project run by the BC Collaborative Roster Society, as long as you meet certain eligibility requirements,
• pro bono mediation may be available through the Pro Bono Family Mediation Clinic run by the North Shore Pro Bono Society, again, if you meet certain eligibility requirements,
• Legal Aid will pay for a limited amount of mediation in certain circumstances, and
• you may be able to hire one of these specialists to work on an unbundled, or limited scope, basis, and they will charge for their services on an as-needed basis rather than requiring that a large retainer be paid up front.

For more information on unbundled legal services, see the website of the People's Law School. For more information about retainers and how lawyers usually charge for their services, see the You and Your Lawyer section in the chapter on Understanding the Legal System for Family Law Matters.

Resolving disputes and thinking outside the box

The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things that once seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.

At the same time, the people who used to be in a romantic partnership are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, establishing separate bank accounts and building new daily routines. Temporary parenting arrangements get sorted out, whether by habit, by agreement, by order, or by award, and temporary arrangements also get worked out about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed.

As your circumstances and attitudes evolve, so should the approach you're taking to the resolution of your disputes.

It seems to me that no single dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues that cannot be addressed otherwise. Apart from unhappy situations like those, different dispute resolution processes will likely be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.

Say, for example, that mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up on the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area for an opinion, and agree to be bound by the lawyer's recommended solution. (I've been asked to do this, and it's a lot of fun.) Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to provide an opinion on the issue at a settlement conference.

There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, and collaborative negotiation are all important ways of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, a willingness to be creative can suggest further options, like agreeing to be bound by the opinion of a respected lawyer or agreeing to take just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work. Be willing to think outside the box.

Formalizing settlements

It is always best to write out the terms of a deal when the deal is done. Writing the agreement out gives everyone a record of their settlement which they can refer to if there's a dispute about what they agreed to down the road. This does happen.

Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of an oral agreement, especially when a lot of time has passed since the agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the court will need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters and emails exchanged in the negotiation process have also been found to record the terms of an agreement.

Lawyers and mediators always make a tremendous effort to record the terms of a settlement as clearly and comprehensively as possible, and will usually put the settlement into a formal document like a separation agreement, a memorandum of understanding, minutes of settlement, or a consent order.

Separation agreements

A separation agreement is a written contract entered into after a relationship has broken down and the legal issues arising from the breakdown have been settled. The contract is written to reflect the terms of the settlement the parties have reached, and includes a lot of extra language that:

1. describes the basic background of the parties' relationship,
2. summarizes the circumstances of the settlement discussions,
3. confirms that each party has had legal advice about the agreement,
4. confirms that the parties intend to be bound by the agreement, and
5. explains the consequences if a party decides not to follow the agreement.

Separation agreements are the product of negotiation, collaborative negotiation, or mediation, and may deal with all or just some of the legal issues between the parties. A separation agreement can also be used to record a settlement reached after litigation has started, instead of or in addition to a consent order.

Separation agreements are discussed in more detail in the chapter Family Law Agreements, in the section Agreements after Separation.

Minutes of settlement

Minutes of settlement are used to create a quick record of an agreement and are not nearly as comprehensive and detailed as separation agreements. Minutes are sometimes drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement describing the parties' settlement at some point in the near future. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough emotional energy, to draft a proper consent order.

Typically, minutes of settlement are little more than an outline of the essential points agreed to, and are signed on the understanding that the terms will be elaborated and put into proper legal language later.

Minutes of settlement are the product of negotiation or mediation, and they usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used as the basis for a consent order, they are often attached to the back of the order.

Minutes of settlement are signed by the parties and their lawyers. Minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order and without the parties signing a separation agreement.

Memoranda of understanding

A memorandum of understanding describes the terms on which all or part of a dispute has been settled. Memoranda are even less formal than minutes of settlement, and may not even be signed by both parties or both lawyers. A memorandum may even take the form of a letter sent by one of the lawyers:

"I confirm that in our telephone conversation of earlier this afternoon, we agreed that the children would live mostly with Suman and that Harjit would have parenting time with the children on weekends and every other Wednesday night, and that Harjit would pay child support to Suman in the amount of $326.00 per month."

While memoranda of understanding can be enforced by the courts on their own, they are almost always put into a more formal document later on, either as a consent order or as a separation agreement.

Consent orders

Consent orders are orders that parties have agreed the court should make — they're orders that the parties consent to the court making. Consent orders are meant to reflect the terms of a temporary or a permanent agreement between the parties, on some or all of the legal issues, after litigation has started.

Sometimes, parties will come to an agreement before a court proceeding has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put in the form of a court order, or if the court would be asked to make an order about something anyway, like a divorce order.

When a judge makes a consent order, the order is just as important and is just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a change of circumstances since the order was made.

Consent awards

Consent awards are awards that parties have agreed an arbitrator should make. Consent awards are meant to reflect the terms of a temporary or a permanent agreement between the parties reached after they have started arbitration.

When an arbitrator makes a consent award, the award is just as important and is just as binding as if it was an award made after the arbitration hearing. Consent awards are difficult, if not impossible, to appeal or change without proof of some sort of deception by the other side or a significant change of circumstances since the award was made.

Wait, I've changed my mind!

Generally speaking, it is not okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, depends on the circumstances in which the settlement was reached and whether the agreement has already been reduced to writing and signed.

After the agreement has been formalized

If you have a change of heart after a separation agreement has been signed, you can attempt to negotiate an amendment to the terms of the agreement. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an amending agreement or an addendum agreement, or something similar. However, if the other side isn't prepared to change the agreement, you'll have little choice except to go to court and ask the judge to make an order different than the terms of the agreement. Be warned! This may be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious and unexpected change in circumstances since the agreement was executed. You can't ask the court to make an order different from the agreement just because you've decided you don't like it. There must be an awfully good reason why the court should do anything different than what you had agreed to.

If you have a change of heart after a consent order has been made by the court, you'll face exactly the same problem. You can try to negotiate the terms of a new order changing the consent order, which will be presented to the court by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.

Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter Family Law Agreements, in the section Changing Family Law Agreements. Changing orders is discussed in more detail in the chapter Resolving Family Law Problems in Court, in the section Changing Orders in Family Matters.

It's important to know that if you disagree with an order or an agreement and simply decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable.

The enforcement of orders is discussed in more detail in the chapter Resolving Problems in Court, in the section Enforcing Orders in Family Matters. The enforcement of agreements is discussed in the chapter Family Law Agreements, in the section Enforcing Family Law Agreements.

Before the agreement has been formalized

People sometimes have a change of heart between the time the deal is struck and the time the agreement is put into the form of a consent order or a separation agreement. (Lawyers often think of this as a form of buyer's remorse.) If this happens, you have two options: you can either live with the agreement, or you can try to get the other side to agree to change the agreement.

You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change, but also the terms that you're really quite happy with. As well, depending on the circumstances, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about.

• Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?
• Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?
• Is it worth the chance of losing other parts of the settlement that you're happy with but that the other side isn't too keen on?
• Is it worth the risk that the other side will start a court proceeding to enforce the unsigned agreement? Is it worth the legal fees it will cost to defend a court proceeding to enforce the agreement?

Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. Each of you gave things up and compromised your positions in order to reach a settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open another issue.

Resources and links

Legislation

• Family Law Act
• Divorce act
• Family Relations Act
• Legal Professions Act
• Family Law Act Regulation
• Notice to Mediate (Family) Regulation

Links

• Divorce Act Changes Explained from the Government of Canada
• Early Resolution Process from the Government of British Columbia
• Family Justice Counsellors from the Government of British Columbia
• Unbundled Legal Services from the People's Law School
• Family Mediation Services from Mediate BC
• Family Law Mediators from the Law Society of BC
• Settling Out of Court from Justice Education Society of BC
• Resolving Disputes Without Going to Court from Dial-a-Law by the People's Law School
• Mediation, collaborative negotiation, and arbitration from Dial-a-Law by the People's Law School
• Family Mediation from Justice Education Society of BC
• Mediation - Child protection and Aboriginal Families from Legal Aid BC
• Virtual Pro Bono Conflict Resolution Clinics from Mediate BC
• North Shore Probono
• Lawyer Directory
• BC Parenting Coordinators Roster Society
• Collaborative Divorce Vancouver (Vancouver and the lower mainland)
• Collaborative Law Group of Nelson (Nelson)
• Okanagan Collaborative Family Law Group (the interior)
• The Collaborative Association (Surrey, New Westminster and the Fraser Valley)
• BC Collaborative Roster Society (province-wide)
• Collaborative Family Separation Professionals (Victoria)

Resources

• “Family Law Basics” video from JP Boyd
• “Alternatives to Going to Court” PDF from Justice Education Society of BC
• “A Case for Mediation: The Cost-Effectiveness of Civil, Family, and Workplace Mediation” PDF from Mediate BC Society
• “All About Mediation” infographic poster from Legal Aid BC
• “An Inside Look at Family Mediation” video from Legal Aid BC
• "How Can We Resolve Our Family Law Issues?" PDF from Legal Aid BC
• "An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods" from the Canadian Research Institute for Law and the Family

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 25 August 2021.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.