Family Dispute Resolution

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 75-111

75

 6

Family Dispute Resolution

A. INTRODUCTION

The following analysis will speak of marriage breakdown and spouses, but

the issues being discussed are equally applicable to the breakdown of rela-

tionships between unmarried couples whether of the opposite sex or the

same sex.

The three most critical issues that arise when a marital or quasi-marital

relationship marriage breaks down are:

1) How are the spouses and the children, if any, coping from an emotional

standpoint?

2) What nancial arrangements will be made in consequence of the mar-

riage breakdown?

3) What is to be done with, or for, the children?

Separation and divorce are emotionally wrenching for most people, par-

ticularly when the relationship survived for many years or there are still

dependent children to care for. If a marriage breakdown occurs, it is all too

easy to deal with it by a “ght or ight” response. Some people decide to

battle through the courts or take the law into their own hands, for example,

by disappearing with the children. Others give up and fail to protect their

own interests. None of these responses is constructive. Before attempts

are made to resolve the practical economic and parenting consequences

76       

of separation or divorce, spouses must attempt to come to grips with the

emotional dynamics of the breakdown of their relationship. This so-called

emotional divorce passes through various stages, including denial, hostil-

ity, and depression to ultimate acceptance of the death of the relationship.

Working through the emotional divorce involves the passage of time. People

need one to two years to get over the trauma of marriage breakdown and

divorce. They must guard against being caught on the rebound. Divorce is

a lonely experience. It is not uncommon to form a new relationship before

the consequences of the old one have been fully resolved.

In the typical divorce scenario, spouses negotiate a settlement, often

with the aid of lawyers, at a time when they are still experiencing the emo-

tional trauma of marriage breakdown. Spouses who have not come to terms

with the death of their marriage and who feel guilty, depressed, or angry in

consequence of the marriage breakdown are ill-equipped to form decisions

of a permanent and legally binding nature. They must be careful, therefore,

to select a lawyer who is experienced in family law and who can assist them

in overcoming the emotional roadblocks to a constructive settlement.

Given the emotional roller coaster of marriage breakdown as well as the

need to work out practical solutions to the nancial and parenting conse-

quences of divorce, spouses should familiarize themselves with the various

means whereby they may manage conict and resolve specic disputes. The

following analysis will focus on several options that are available, namely,

marriage and family counselling, negotiation, collaborative family law, medi-

ation, med-arb, arbitration, and parenting coordination. Before examining

these processes, however, it should be made clear that federal and provin-

cial legislation in Canada has expressly acknowledged the importance of

lawyers and the courts addressing the prospects of spousal reconciliation,

negotiation, and mediation to arrive at a resolution of family disputes. The

alternative is expensive and emotionally exhausting litigation.

B. DUTIES OF THE PARTIES AND THE LEGAL PROFESSION TO

PROMOTE THE CONSENSUAL RESOLUTION OF DISPUTES

1) Duties of the Parties

Section 7.1 of the Divorce Act provides that any person with court-ordered

parenting rights and responsibilities shall exercise them in a manner con-

sistent with the best interests of the child. Section 7.2 stipulates that divorce

Family Dispute Resolution 77

litigants shall, to the best of their ability, protect any child of the marriage

from conict arising from the proceeding. These exhortations are reinforced

by section 7.3 of the Divorce Act, which provides that, 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 a court order through a family dispute

resolution process. A party’s failure to protect a child from conict may be an

important consideration in granting primary residence and decision-making

responsibility to the other parent.

2) Duties of Lawyers and the Courts

a) Inquiries with Respect to Reconciliation

Section 7.7(2) of the current Divorce Act imposes a duty on every lawyer who

represents a divorce client to discuss the possibility of spousal reconcilia-

tion. Lawyers must also inform their clients of known marriage counselling

or guidance facilities that might be able to assist the spouses to achieve

a reconciliation. However, a lawyer is relieved of these obligations “if the

circumstances of the case render it inappropriate.” By the time most separ-

ated spouses have found their way to a lawyer’s oce, the marriage is over.

Reconciliation attempts at this stage are “too little, too late.” Consequently,

lawyers spend very little time with their clients dealing with the feasibility

of reconciliation.

Section 10 of the Divorce Act also imposes a duty on the court to satisfy

itself that there is no reasonable prospect of spousal reconciliation. If either

spouse insists that there is no hope of reconciliation, that ends the matter.

But if both spouses are ambivalent about the divorce and the judge believes

there is a realistic possibility of reconciliation, the divorce proceedings will

be adjourned. The adjournment is intended to provide the spouses with

a nal opportunity to achieve a reconciliation. When an adjournment is

ordered for the purpose of promoting reconciliation, the court may desig-

nate a person or an agency with marriage counselling skills to assist the

spouses in their attempt to achieve reconciliation. Fourteen days after an

adjournment has been ordered, either spouse may abandon reconciliation

eorts and request the court to resume the divorce hearing.

Any admission or communication made during the course of a recon-

ciliation conference is absolutely condential. If the reconciliation attempt is

unsuccessful and the divorce proceeding resumes, there can be no evidence

submitted to the court concerning statements made during a reconciliation