We’ve been keeping our eye on recently proposed changes to Canada’s Divorce Act, and many of them are quite exciting for collaborative family law.  Firstly, collaborative law is specifically referenced in the bill, signalling what we as an association have been advocating for quite a while: collaborative family law is a worthwhile process that people going through separation and divorce should seriously consider.  Secondly, the bill creates a duty on lawyers to inform their clients about collaborative family law and to encourage them to use the process if it can help them.  So far, Bill C-78 made it through its first reading in the House of Commons.  We will keep tracking its progress, but for now here is what you might expect:

If you are going through separation and divorce, you must, if appropriate try to resolve things through a family dispute resolution process.  If “family dispute resolution process” sounds super vague to you, don’t worry.  Firstly, this sounds vague to everyone.  Secondly, the changes provide a definition.  Most importantly, family dispute resolution process means a process outside of going to court.  The three examples listed are: negotiation, mediation, and collaborative law.  Although these processes take place outside of court, it does not mean that you shouldn’t get a lawyer.  In fact, a lawyer is very useful in all these processes, and you should consult one.  When you see your lawyer, expect them to be able to describe all these different processes to you and to advise you on which ones would be most appropriate for you.  Generally, these out-of-court processes will focus on people making their own decisions about their families and on having supported and productive communication.  If you want to learn more about collaborative family law as one of these options, check out the rest of our website, or contact one of our collaboratively trained professionals!

If you are a lawyer practicing family law, you will have a new duty to discuss family dispute resolution processes (including negotiation, mediation, and collaborative law) to your clients.  To carry out this duty responsibly you have to do a few things.  Firstly, you must meaningfully explain these process options to your clients.  This may mean learning more about collaborative practice if you haven’t taken any training in the past.  Secondly, you must able to advise your client on whether each process would be appropriate in their circumstances.  Thirdly, if appropriate, you must encourage your clients to pursue one of these out-of-court processes.  Finally, you must inform your client about this duty.

If this duty sounds familiar to you as a lawyer, it may be because the commentary for the NSBS Code of Professional Conduct suggests a lawyer should consider and inform their clients of alternative dispute resolution options. However, the duty drafted in Bill-78 seems to have more teeth than the ethical obligation in the Code.  For starters, the language in the proposed changes is more imperative than the language in the Code, and the proposed duty is also more detailed.  Also, the proposed changes actually identify the processes that you should discuss.  Perhaps the biggest differences is the proposed changes mandate that every document filed to start or respond to a proceeding under the Divorce Act will have to include a statement from counsel certifying they have complied with their duty.

While you eagerly await new court forms, why not contact us to learn more about collaborative law or sign up for collaborative training?  Screening for collaborative cases is not always straightforward, but we have resources that can help!

If you’d like to read the proposed changes, you can read them here: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-78/first-reading