Family Law
#5 - Dispute Resolution Options
STANDARD
A lawyer must be knowledgeable about dispute resolution options relating to family law matters to a degree sufficient to advise the client of their characteristics, availability and the appropriateness of each for a particular client. 1
REFERENCE MATERIALS
Notes:
1. Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), s. 9; Rother v. Rother, 2005 NSCA 63 (CanLII) - binding settlement agreement - Settlement Conference.
Be aware that some forms of alternative dispute resolution, such as mediation or settlement conferences, may not be appropriate where a significant imbalance of power exists between the parties. [See Mcclenahan v. Clarke, 2004 CanLII 25843 (ON S.C.)]
Duty of legal advisor
9. (1) ……
(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a
spouse in a divorce proceeding to discuss with the spouse 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.
Certification
(3) Every document presented to a court by a barrister, solicitor, lawyer or advocate that formally commences a divorce proceeding shall contain a statement by him or her certifying that he or she has complied with this section.
Related Legislation:
Civil Procedure Rules - Part 4 - Alternate Resolution or Determination
Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), s. 9.
Additional Commentary:
Dispute resolution options include but are not limited to, judicial settlement conferences, non-judicial settlement conferences, mediation, arbitration, litigation, collaborative family law process, negotiation and conciliation.
Comeau v. Comeau, 2007 NSSC 8 (CanLII) – Settlement conference – validity of contract – fundamental mistake.
Chapman v. Chapman, 1996 CanLii 5383 (NS S.C.) - Separation agreement - Negotiations – Binding settlement.
Durocher v. Durocher, 1991 CanLII 4237, 106 N.S.R. (2d) 215 (T.D.)). – Family Law - Settlement Conference – Validity of settlement agreement – Courts to encourage settlements.
In Webb v. Birkett, 2011 ABCA 13, the Alberta Court of Appeal held that the defendant solicitor Birkett was negligent in representing the plaintiff Webb in a collaborative family law settlement. The Alberta Court of Appeal held that CFL practitioners must meet the same standard of care required of other family law practitioners including taking appropriate steps to get the financial information needed to properly advise the client. A lawyer must obtain sufficient reliable information to be able to ascertain what the client would likely receive, or be required to pay, for spousal support, child support and matrimonial property division should the matter be resolved at trial, and so advise the client. A lawyer should tell a client who takes the position that he or she wants to settle without having received full information from the other side that they may therefore be accepting less, or paying more, than what would be required according to law, and provide to that client an assessment of the impact f the risk, including estimates of the value of what might be lost, or paid above what was necessary, to the extent possible, on the basis of the information then available. A prudent solicitor would put this advice in writing.
DOWNLOADS
Related Ethics:
Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society,1998) c. 5-7,18, as amended.
Chapter 10 – The lawyer as an advocate (see Commentary: 10.2A – Alternate Dispute Resolution)
Resources:
Supreme Court (Family Division) - Mediation program. Each spouse pays a fee based on his or her income.
Family Mediation Canada – contains a list of trained mediators.
ADR Institute of Canada provides information about ADR and access to mediators and arbitrators.
Collaborative Family Lawyers Association
Precedents:
Private Mediation Information
Informations sur la médiation privée
Mediation - what do I need to know?
La médiation: ce qu’il faut savoir
Conciliation - A First Step
La conciliation: Première étape
Mediation Information in the Family Division
Information sur la médiation
ARTICLES
Annotated Legislation:
Casey, Patrick L / Looking ahead : the challenges facing collaborative law in Nova Scotia (December 2003), in Society Record vol. 21 no. 6 p. 8.
Elliott, Robyn L. / Collaborative family law (2002), in Nova Scotia Law News vol. 27 p. 33.
Haynes, John M; Haynes, Gretchen L. / Mediating divorce: casebook of strategies for successful family negotiations -- San Francisco: Jossey-Bass, 1989. [KB 138 H424 1989]
Irving, Howard H. / Family mediation : theory and practice of dispute resolution -- 2d ed. -- Toronto: Carswell, 1987. [KB 138 I72 1987]
Landau, Barbara; Wolfson, Lorne; Landau, Niki. / Family mediation, arbitration and collaborative practice handbook -- 5th ed. -- Markham, Ont.: LexisNexis Butterworths, 2009. [KB 138 L253 2009]
MacDonald, James C; Wilton, Ann. / The 2009 annotated Divorce Act -- Toronto : Thomson Carswell, 2008. KB 138 M135 2009
Macfarlane, Julie / What is beneath the hype of collaborative family law? (September 23, 2005), from The Lawyers' Weekly.
Noble, Cinnie. / Family mediation: a guide for lawyers -- Aurora, Ont.: Canada Law Book, 1999. [KB 138 N747 1999]
Palliser Conflict Resolution / Explaining collaborative law to a family law client (September 2005), in Collaborative law: a useful tool for any area of practice. [KB 137 N935C 2005]
Shields, Richard W; Ryan, Judith P; Smith, Victoria L. / Collaborative family law: another way to resolve family disputes - - Toronto: Thomson Carswell, 2003. [KB 125 A7 S556 2003]
See also: Department of Justice, 2005: The Emerging Phenomenon of Collaborative Family Law
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Approved by Council on March 25, 2011