Divorce Act Changes: Defining the Responsibilities of the Lawyers and the Clients
As I have mentioned in previous blog posts, the Divorce Act has been amended and the changes will be coming into force on March 1, 2021. Whereas I focussed on the changes which are intended to encourage people to consider alternatives to court, such as mediation and Collaborative Practice, to try to resolve their disputes, this post will address the client and practitioner’s duties which are included in the Act.
The Act imposes on the client certain duties when they are working to resolve the issues that arise as a result of their separation. The duties are as follows:
- A client is required to act in a way which is supportive of the best interests of the children;
- A client is required to protect the children from conflict which arises from the proceeding;
- A client is encouraged to try to resolve matters through a family dispute resolution process;
- A client is required to provide accurate and full disclosure of the evidence;
- A client is required to comply with court orders that have been made; and,
- A client is required to certify that he/she has been made aware of these duties if they file any documents in court.
With regard to the best interests of the children, the Act prioritizes the best interests of the child which is the overriding consideration in the resolution of any issues involving children. This section reminds parties of their obligations in that regard.
Related to the child’s best interests is the importance of protecting the children from being involved in the conflict between the clients. Research indicates that children’s well-being suffers if they witness conflict between parents during and after a separation or divorce. In the best interests of the child, parents must try to shield children from conflict as much as possible.
Family Dispute Resolution Processes which occur outside of the court process are encouraged. The intention is to recognize that it is generally faster and less expensive to resolve issues through negotiation or other dispute resolution processes than through court proceedings. In cases involving children, there are particular advantages to developing agreements through family dispute resolution processes. Consensual processes, such as mediation and Collaborative Process, usually aim to keep parents focused on the best interests of their children. These processes also tend to improve the communication skills separating spouses will need for years to come to resolve issues related to their children as well.
Disclosure is a fundamental part of the family law system and often the most frustrating to navigate and obtain. The intention of this provision is to remind clients of their obligation and to highlight the issue with them.
Court orders are obligatory for those to whom they apply. Despite this clear understanding, some litigants do not comply with orders related to parenting or support. This provision is intended to encourage compliance by clearly stating the obligation to obey court orders while they are in effect.
Finally, the obligation of the clients to confirm that they are aware of and understand the obligations is there to remind the clients, particularly where they are unrepresented by lawyers.
The Act also sets out duties for the legal advisors assisting clients to try to resolve their disputes, as follows:
- The advisor is required to raise the issue of reconciliation of the clients and to inform clients of counselling and other services which are available to assist them to consider that option to resolve the matter;
- The advisor is required to encourage the use of Family Dispute Resolution Processes, such as mediation and Collaborative Process to resolve their disputes;
- The advisor is required to inform the client of family justice services which might assist them to resolve their issues or to comply with orders;
- The advisor is required to inform the clients of his or her duties, as described above; and,
- The advisor is required to certify that they have complied with these duties if they file any documents in court.
The Government does not wish to be seen as encouraging the breakdown of families. As a result, they have adopted a policy of requiring legal advisers to consider, and where appropriate, to encourage assisting the clients to reconcile, as opposed to terminating the marriage or relationship. This provision confirms that obligation goes farther and requires them to provide them information about resources available to assist them to do so.
The requirement to encourage the use of consensual or out of court processes to resolve disputes is a significant change in the traditional approach to separation and divorce. It recognizes that the court process can be conflictual and damaging to relationships and that other processes may be more appropriate for families to resolve their issues.
The obligation to advise clients about the availability of other services to assist them, particularly for issues which are not “legal” in nature, recognizes that more often than not separation is not about legal rights and obligations but instead are social, psychological and financial in nature and that the clients should have access to services to assist them to resolve those issues, which the courts are generally not well suited to resolve for them.
The requirement on the adviser to inform the clients of these process options and services is intended to highlight the need for advisers to recognize that family law disputes are not limited to strictly “legal” issues and to try to encourage the use of services and professionals who would have the best capability to deal with the circumstance in which they find themselves.
And, as with the clients, the obligation to certify the fact that they have complied with their obligations and in particular have told the clients about his or her or their obligations brings home the importance of ensuring that such access and options are made available to clients.
The Family Law Group at Low Murchison Radnoff LLP are following these developments carefully, as well as the corresponding changes which the provincial government is proposing, in order to ensure that we and our clients are well aware of the obligations and to ensure that they are followed in any process in which we engage on their behalf.
If you have any questions about this subject or any other Family Law issue, please contact any member of our Group and we will be happy to assist you.[ssba]