Mediation, Arbitration, Litigation and Collaboration for Divorce, Child Custody and Other Family Law Issues
The British Columbia Family Law Act came into force in March 2013. It places a much greater emphasis on out of court dispute resolution options than did the previous law. Parties are encouraged to resolve their disputes before going to court, and this is particularly the case where the best interests of children are involved.
Family law agreements are often reached through lawyer-assisted negotiations, and this is part of the professional legal services that we can provide. We can inform you of your rights and obligations under the British Columbia Family Law Act, which is the first step in determining the best resolution strategy to pursue.
We can also explain the various process options available to you; for example, negotiation, mediation, arbitration, litigation and the collaborative law process. Once you've selected a process, we can help you prepare, and provide independent legal advice on any agreement that results from such a process.
Division of Property and Alimony / Spousal Support
The Family Law Act places a greater emphasis on agreements that did the previous law in British Columbia. It states that agreements are binding on the parties that sign them. Under the British Columbia Family Law Act, the court cannot make orders about spousal support or the division of property and debt if the parties have an agreement on these matters unless the court first finds it appropriate to set aside that agreement.
For an agreement about spousal support and / or property division to be set aside, one or more of the following circumstances must have existed at the time the agreement was entered into:
Failure to disclose significant property or debts, or other relevant information;
One party took improper advantage of the other;
One party did not understand the nature or consequences of the agreement; or
Other common law tests for setting aside a contract are met (i.e. undue influence)
In other words, you can resolve your family law property division and spousal support issues by agreement, and the British Columbia Family Law Act encourages you to do so and then seeks to protect that agreement. This protection is particularly strong for agreements regarding the division of family property and family debt as the federal Divorce Act does not also apply.
It is important, however, that both you and the other party have independent legal advice when reaching an agreement. Agreements are contracts, and they are binding, possibly indefinitely. Legal advice will help assess the level of disclosure, guard against one party being taken advantage of, and ensure the agreement is enforceable should one party seek to challenge it in the future.
Child Custody, Guardianship, Parenting and Child Support
You can also resolve your family law child custody, guardianship, parenting and child support issues by agreement. Agreements respecting children must consider only the best interests of the child, and the British Columbia Family Law Act states that an agreement or order is not in a child’s best interests unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being. The result is that agreements clearly not (or no longer) in a child’s interests can be set aside by the court.
However, recall that one of the purposes of the British Columbia Family Law Act is to encourage parties to resolve conflict without court intervention; thus, in many cases the court will give considerable deference to an agreement between the parties – especially if that agreement has functioned for a considerable period of time before conflict erupts.
The British Columbia Family Law Act also changed the law on three areas that frequently resulted in court action in the past: whether a parent who no longer lives with a child continues to be that child’s guardian (they do), whether they continue to have the right to participate in decision-making affecting the child (they do), and whether a parent has the right to be notified in advance before the other parent relocates with a child (they do).
Changes have also been made to the remedies available to a parent who is wrongfully denied parenting time, and to the definition of what constitutes family violence. Family violence is defined to include physical, sexual, psychological, emotional and, in some cases, financial violence. The impact of any family violence must be considered in determining whether an agreement is in a child’s best interests. It will also impact decisions about the best dispute resolution processes to use, and whether specific approaches and protections are required for safe and effective dispute resolution processes.
Talk to a Nanaimo Family Lawyer About Your Options
Read more below about the most common family resolution processes. Or contact Candid Legal for a consultation about your case and concerns. We will walk you through your options and provide experienced help each step of the way. You may reach us by filling out our online form, calling (250) 585-1595, or emailing email@example.com.