Collaboration in Family Law: A Better Alternative to Traditional Divorce
Collaboration is an alternative to traditional divorce that focuses on cooperation, creativity, respect and avoiding the courtroom.
Collaboration is an alternative to traditional divorce that emphasizes cooperation, creativity, respect, full financial disclosure, honesty, and avoiding the courtroom.
Most people do not want an adversarial process that lands them in court, arguing over the minutiae of their lives let alone the major issues such as custody, access, spousal and child support, sale of the home, division of other real estate, or pensions.
Many cases that begin with conflict, bickering, and adversarial lawyers even if they don’t ultimately go to court would be better served by what is known as the collaborative process.
The collaborative family law process originated in the Midwest of the United States, spread to Canada, and has since become a recognized dispute resolution method around the world.
What Is Collaborative Family Law?
Collaborative family law is based on several key principles. Specially trained lawyers who, in addition to their regular legal training, receive specific training in negotiation and mediation are retained by each party. These lawyers commit to resolving disputes without resorting to court. Each party has their own lawyer to ensure their individual interests are represented.
In addition to the family law lawyers, the collaborative process may include:
- A family professional (e.g., a social worker or psychologist) who assists with custody or parenting issues and may offer support to the parties or their children.
- A Chartered Business Valuator (CBV) who can assess the value of any businesses or the income of a party, particularly in cases involving self-employment, cash income, or significant expense deductions.
- A financial professional (separate from the CBV) who helps one or both parties with budgeting, financial planning, and maximizing the value of their share of family assets.
The Collaborative Participation Agreement
All participants lawyers, parties, and any professionals involved sign a Collaborative Participation Agreement. This agreement includes commitments:
- To avoid going to court
- To provide full and open financial disclosure
- To negotiate fairly, respectfully, and transparently
- To involve relevant professionals as needed
Should the process break down and impasse remain even after mediation efforts, both lawyers are required to withdraw, and the parties must then retain litigation counsel.The agreement specifically requires:
- Full financial disclosure
- No hiding of assets
- Preserving family resources during the process
- Fair sharing of family income
- Maintenance of financial and healthcare provisions for both parties and especially the children
- The inclusion of collaborative professionals
- Respectful and dignified behaviour throughout
Having joint experts (e.g., for business valuation or budgeting) avoids duplication and minimizes expenses, making the process more economically reasonable.
A Creative and Respectful Process
While collaborative family law operates within the framework of relevant statutes such as the Family Law Act, Divorce Act, and Children’s Law Reform Act (for unmarried parties), it allows for highly creative settlements.
For example, if both parties love the family cottage but one retains ownership, the other may negotiate access for a certain number of days or weeks per season. Collaborative law allows this kind of flexibility and cooperation.
Importantly, collaborative negotiations help shield children from the stress of a high-conflict divorce. They also teach communication skills that help parents function more effectively as co-parents moving forward.
Cost and Suitability
A collaborative process is generally far less costly than an adversarial one. It avoids prolonged litigation, unnecessary correspondence, and time-consuming conflict.
However, not all cases are suitable for collaboration. If there has been domestic abuse physical or emotional), serious dishonesty (e.g., hiding assets), or financial misconduct (e.g., running up debt to gain leverage), the matter is not appropriate for the collaborative process.
A Better Way Forward
In most collaborative cases, the parties reach a resolution with which they are, on the whole, satisfied. Rarely is anyone completely happy, but that is the nature of a good settlement: both parties feel they have gained something, compromised fairly, and can move forward with dignity.
Our office is trained and experienced in the collaborative family law process. Judith Holzman was among the first group of collaboratively trained lawyers in Ontario. We would be happy to assist you as you move through this respectful and constructive process.
