Posted by Olivier Fuldauer — filed in Mediation
Family law disputes are as varied as each relationship, there are however, a limited number of topics and a limited number of dispute resolution options.
The checklist of topics that couples typically face are:
Complexities: Each family is unique but this list has some common special considerations:
The goal in any separation is resolution. Resolution is typically captured in a written agreement with independent legal advice or a court order. Written agreements with independent legal advice and court orders can both be legally enforced. Without something legally enforceable, one party can change their mind and leave you with no resolution at all.
If there is no agreement on all resolution topics then there is a dispute. Disputes can be large (everything is undecided) or small (only one or two things are not agreed to). There are a variety of dispute resolution options. Starting with the least contentious, and moving to the most contentious, the dispute resolution options for family law disputes are:
Come To An Agreement
This means negotiating with each other through some or all of the topics that need to be sorted out. Independent legal advice is necessary before you reach an agreement so that you understand your rights and entitlements. Independent legal advice will be needed in any event if the settlement is to be put in the form of a legally enforceable separation agreement.
Negotiation With Lawyers
This can be beneficial and efficient where both parties receive and want to follow legal advice on how to resolve their issues in dispute. It is rare that some headway cannot be made between lawyers on at least some issues.
A mediator guides parties to a resolution without giving them legal advice. Legal advice still has to come from their lawyers. Mediation is often successful even with parties struggling with difficult issues.
This is a good option where both parties will agree to lock themselves into a process which is guaranteed to produce a result. The parties select a mediator/arbitrator and agree to mediate their dispute until they either resolve everything or can’t go any further with mediation. If they get stuck, then either party can start the arbitration. When the arbitration begins, the process becomes like a court process: there are witnesses, evidence, legal arguments, and a final decision made by the arbitrator. Mediation/arbitration is an effective way to resolve tough disputes.
It is also an option to go straight to arbitration without any mediation phase. People may choose this option where they want to pick their decision-maker (the arbitrator), something they cannot do at the courthouse. Or because they want to move forward faster than the courthouse can accommodate. Wait times for arbitration can be weeks. Wait times for trials can be many months.
Provincial Court (Family)
This level of court is often called family court. It is well-adapted for people who represent themselves and for that reason can be very crowded. It is also the court where child welfare and young offenders matters are heard. Family court cannot deal with divorce (a federal matter) or matrimonial property, but it can deal with parenting and support questions under provincial legislation. Matters are brought before the court either in the form of an application for a specific remedy or a trial where oral testimony is required. We recommend that you have a lawyer represent you in family court because all courts are governed by procedural rules, rules of evidence, and the law.
Court of Queen’s Bench of Alberta
This is Alberta’s superior court and court of inherent jurisdiction. That means, all family-related disputes can be brought before this court including divorce. This court also resolves disputes by hearings which are either applications or trials. Applications can be for such things as child or spousal support. Trials can be on a single issue or all of the issues between the parties. We recommend that you have a lawyer represent you in the Court of Queen’s Bench so that you can use the procedural rules, rules of evidence, and the law to your best advantage.
Olivier Fuldauer has practiced law for 20 years and has been a certified mediator since 2017.