Collaborative Family Law vs. Adversarial Family Law
by Gerry M. Laarakker, Vernon Lawyer
CFL v. AFL. This is not a diatribe on the virtues of Canadian versus American football; after all, as Canadians we all know which brand of football is superior, and as someone of European descent, I would contend that what Canadians refer to as soccer, and any Dutchman worth his cheese would know as voetbal, is the real McCoy! But this column is not about football or voetbal, it is about Collaborative Family Law versus Adversarial Family Law.
It would be difficult to imagine a more destructive process than our present adversarial family law system to bring an end to a marriage. Imagine two lawyers, who training is to be adversarial, that is to say, to be opposing each other, having at it in a court room like two legal gladiators, using every legal stratagem and trick in the book to obtain the most advantageous result for their own client. You can see how this kind of mayhem can only be destructive to all concerned, particularly for the parties to this public disaster and their children.
The system does not serve anyone well, including those lawyers practicing family law who often wind up hating their jobs. Though some of them actually take pride in their reputations as pit bulls – but pit bulls merely cost more money, they don’t get better results, because the law is the law. The judge makes the final decision, and everyone will go home unhappy, both parties feel that they were ripped off by the legal system, the children have been torn apart in their loyalties to their parents and the court orders are often disobeyed, resulting in more trips to the court room or to the Family Maintenance Enforcement Program, a dreadful bureaucracy whose thankless task it is to make those deadbeat payor spouses pay the ordered support.
It would be difficult to imagine a more destructive process than our present adversarial family law system to bring an end to a marriage.
The alternative is collaborative family law, a system whereby the divorcing parties work out their own agreements, without going to court. The divorce still takes place in front of a judge who pronounces a Consent Order. This is clearly a much better solution. The parties come to an agreement with the assistance of specially trained lawyers, mental health professionals and such other professionals as may be required, as for instance an accountant for asset evaluation purposes. Interestingly, despite all these highly paid professionals, the cost of a collaborative divorce is lower than a divorce the traditional way.
The reasons for this are interesting. When people get married, they love each other. Things happen for whatever reasons and the marriage grinds to a halt, even if it is sometimes only for one partner. While it takes two people to get married, it only takes one person to get a divorce. Frequently the legal divorce and the emotional divorce are out of sync. In a collaborative divorce the emphasis is on maintaining the dignity of the parties, creating and maintaining the respect needed to be able to act together as parents to the children and to arrive at a realistic asset division and support order that both parties can live with.
The soul-destroying attitude of “I’m going to take that so-and-so for every penny” is not part of a collaborative divorce. The parties to a collaborative divorce start with a contract with their lawyers insisting on openness, honesty and non-adversarial conduct. And if one of the parties breaks that contract, both parties will have to get new lawyers and start the process the old fashioned, and very bad way, from the beginning. The punishment is that they will have wasted a lot of money and time.
A new group of lawyers and other professionals practicing collaborative family law has been formed in the Okanagan. For further information, please contact my office at 250-260-4273.