Comments Off on The Collaborative Process: A One-Stop Shop for Resolving…
Marie Nickle LL.B LL.M Acc.Fm
The Collaborative process is my favourite alternate dispute resolution process. Unlike mediation, it is a one-step model. Mediation requires two steps: one to reach a consensus with the mediator; and two, to receive independent legal advice from lawyers who will also turn the Mediation Report into a legally binding agreement or court order.
The Collaborative process is a full service model as it includes all necessary professionals, including lawyers. When lawyers have been involved from the outset they understand the thought processes that went into the construction, unlike many mediations where lawyers are not present during the mediation sessions and are handed a Mediation Report cold, without any context as to what is important to the parties and how the agreement captures the optimal results, crafted by the parties themselves.
Throughout the Collaborative process, the lawyers are ensuring the agreement meets all the necessary legal requirements and that the clients are legally protected, while the other professionals are providing other necessary and valuable services for the parties. The Collaborative process can be thought of as the process that is a one-stop shop for resolving family conflict upon separation.
You have struggled with the emotional and psychological issues of our divorce and now it’s time for the financial side. You have assessed your outstanding credit obligations as well as your assets and have decided to divide them equally, each of you walking away with the responsibility of paying off specific debt. You think you have finally come to an agreement so you settle and move on to start a new life. You work hard over the next few years and start putting money away to get you a new home. You think you’ve made it, found a perfect opportunity, so you go to the bank and ask to qualify for a mortgage, then comes the bad news “you don’t qualify due to poor credit history”. How can this be? You have paid everything off and your spouse should have taken care of his/her share, or have they? This can be devastating news when so much time has been spent trying to get your life back in order. So what went wrong and how cold this happen?
Financial matters are one of many issues that can drive couples apart. Often one partner is the spender while the other is far more frugal and watches every penny. You can also have two parties just as equally devoted to their finances but with one individual less knowledgeable who just goes along faithfully with whatever their partner agrees to. Whatever your situation is unless you understand your assets as well as your credit obligations in the marriage you could be in for a big surprise.
During your marriage you and your partner will apply for credit cards, share lines of credit, take out a mortgage, sign on car loans, and hold various other joint liabilities such as “buy now pay later plans”, and possibly investment loans. All these facilities get reported to the credit bureau on a regular basis from the respective lenders. The credit bureau also keeps track of other mutually responsible transactions like cell phone plans, legal judgments against you, collections, as well as bankruptcies and consumer proposals. So what does this mean? All this reporting and updating is being done to establish your individual credit worthiness or ability to repay debt. This comes disguised in the form of a credit report and further revealed as a credit score to would be lenders. So why is this important?
When both partners are disclosing their respective assets and liabilities, many times they forget items that ere taken out years before and have never been used or loans that may have been signed for but now don’t recall the transaction. So you both decide that your agreement will make each party responsible for the pay down of specific debt, normally if it’s a debt associated with a particular asset like a car, it will go with the individual who keeps the car. The problem however, occurs when both parties have jointly signed on a credit obligation and only one of you agrees to keep up the payments. If you signed on that car loan as well, then what happens if your partner stops paying. Although you think you have an agreement in principle your lender will not see it that way and should your partner stop making payments not only is their credit rating affected but so is yours. Those cell phone agreements, maybe both of you signed on the contract now one of you rakes up a huge bill and decides not to pay for it, you guessed it, it becomes you problem as well. That joint line of credit you took out years ago and never used and forgot about, guess what the other party has now decided to use it and not pay it back, you may not get those collection calls because you may have relocated but that first visit to the bank will give you a new reality check. All these lapses in repayment and unpaid credit wreak havoc on your credit rating as well as your credit score, which is an indication of your worthiness to potential lenders. In other words, can they count on you to repay the debt on time and without missing any payments? So how do you protect yourself?
The first step is get informed, understand what family liabilities exist on your credit report, order a copy usually a paid copy is best because this will give specific details on the type of liability and the ownership of that liability whether it is individually held or jointly held. This is often not undertaken by either party and leaves open the possibility of not reporting or closing out old and unused joint credit, leaving an opportunity for potential misuse by either party. Do an inventory on all the credit cards, lines of credit, purchase plans and other charges against your name. If you need help, see the assistance of a Financial Divorce Specialist to help you make sense of it all and guide you through the process.
For all joint liabilities, you will need to make sure that the lender will either re-write you out of the loan or credit obligation and if not you will need to make arrangements to get this facility paid out from family assets and closed. You take a big credit risk by not doing this because you will not be able to protect yourself should the other party not fulfill their end of the bargain leaving you with deteriorated credit and the inability to borrow, rent or with the employers wanted credit checks more often could keep you from getting a job. This holds true for your mortgage as well, make sure it is re-written and that the individual keeping the home can qualify to carry it on their own, other wise you may have no option but to sell the property. Don’t leave yourself exposed to potential credit meltdown, know where you stand and don’t just settle…Settle Smart!
On September 19, 2012, Statistics Canada released the 2011 Census data on families, households and marital status. This event occurs only once a decade and it discloses important lessons regarding Canadian families and their living arrangements. The new data reveals that individuals are choosing family structures that result in more complicated personal and legal relationships.
Some of the highlights of the families, households and marital status survey for family law professionals are:
Between 2006 and 2011, the number of common-law couples rose 13.9%; more than four times the increase for married couples, which as 3.1%.
Same-sex couples account for 64,575 families in Canada, a 42.4% increase from 2006. 43,560 of these couples are in common-law relationships.
For the first time, common-law couples outnumbered lone-parent families in 2011.
3,684,675 couples have children and approximately one eighth (12.6% or 464,335 families) are step families with one or more children and not biologically related to one of the parents.
41% of step families are “complex” step families, whre there is at least one child or both parents as well as at least one child of one parent only.
Married couples declined from 91.6% of all families in 1961 to 67% in 2011.
42.3% of young adults aged 20 to 29 live with their parents either because they never left it or because they returned home after living elsewhere. This proportion was relatively unchanged from 2006, although it was well above the share of 32.1% in 1991 and 26.9% in 1981. The proportion of young adults living with their parents was higher for those in their early 20’s compared with those in their late 20’s. Young men were more likely to live at home than young women.
These trends demonstrate an increase in competing family interests. The families, households and marital status survey is rich with facts and analysis that will be of interest to family law professionals. Click here to link tot he Statistics Canada Families, Households and Marital Status Report and data analysis:
“What separates those who can obtain a smart divorce from those who can’t is this quality of being prepared to move on. They’ve done their mourning, to the extent that mourning is involved. And they have come to recognize that they are not victims. ‘This is what life has to offer. So let’s move on.”
~ Jeffery Wilson, cited in Deborah Moskovitch, The Smart Divorce, (Chicago: Chicago Review Press, 2007).
Often, couples fail to properly address their grief following the breakdown of their relationship and the loss of their marriage. The grief of losing a life shared, your identity as a couple, your security and even your beliefs If you fail to come to terms with the fact that you are divorcing emotionally from life as you know it, the legal process of divorce can become almost impossible. I have had many a file where the parties’ inability to let go of their anger blinded them from noticing the damage their decades of litigation had on their children and personal lives. They were going through the legal divorce failing to address their emotional divorce.
Failure to identify this grief and to deal with it constructively can result in a long, arduous and expensive legal process.
Arnold Schwarzenegger comments on the emotional impact of his divorce from Maria Shriver, after he fathered a love child with the couple’s housekeeper, in his upcoming book, Total Recall: My Unbelievable True Life Story. The New York Daily News revealed that Mr. Schwarzenegger continues to believe that he is in denial and still hopes for a reconciliation with Ms. Shriver.
Divorcing couples must acknowledge that a divorce can divide assets and liabilities, and arrange for child or spousal support but it cannot punish your spouse for his or her bad behaviour during or after the marriage. It cannot guarantee that your support payments will be made or that access schedules will be smooth and problem-free. It cannot make your spouse change, nor will it return your life to the way it was.
Collaborative family lawyers recognize and address the grief. Perhaps you need to give yourself a period of mourning. Then focus on how you want your life to look. Create a strong support network and recognize that you are not alone. Professional help through parenting experts, financial specialists and therapists can also help regain control of your life. Collaborative family lawyers routinely draw on other experts to assist in the process.
As you deal with your grief, it will become easier to make legal decisions that are in your best interest. Divorce with dignity, and move on. And find a process that will support you in doing so.
Fareen Jamal
Bales Beall LLP
2501-1 Adelaide Street East
Toronto, ON
M5C 2V9
This process is a vehicle for lawyers to actually provide a meaningful service for clients. And why wouldn’t we? We are so well positioned to do so. People come to us at possibly the worst times of their lives. Their worlds are falling apart. They are stressed, sad, angry and above all fearful of the changes they are going through. We, as lawyers, are often the first they turn to for professional help. They are looking to us to guide them toward a resolution to their conflict that includes peace of mind as well as a legal resolution. After all, who doesn’t want peace of mind? Of course, we can’t advertise it and there are obviously no guarantees, but if even a small degree of peace of mind is attained in the process, we’ve accomplished something for our client. How do we do it? One way is being aware that, when children are involved, maintaining relationships is important for the client. Often the client is too immersed in their emotions to think long term. As such, it is difficult for them to form effective negotiation strategies. Often what is in the best interest of the client is tied directly to what is in the best interests of the entire family. We can help a client form good negotiation strategies by focusing on this principle. It will help keep clients centered in terms of what is really important. A true collaborative client will always agree that a good legal result has to include quality of life. After all, what good is it to bargain away an important relationship in exchange for a legal entitlement? If the relationship isn’t important then it doesn’t matter. But most of the time we are dealing with relationships that are important to the client in the area of family law. To provide truly valuable service we need to include advice that includes not only the legal advice, but how any given legal result will impact upon quality of life for the client going forward. This is what your client will thank you for. Not that I expect it, but I realized that I rarely even received thanks from a client, that is not until I started to practice in the Collaborative Process. Now it happens all the time.
Marie Nickle is a lawyer and trainer of the Collaborative Process.
Marie Nickle, LL.B LL.M AccFM
Lawyer, Mediator, Arbitrator, Trainer
Former panel lawyer for the Office of the Children’s Lawyer
