Tuesday, November 8, 2016

Thinking of Separating?

You don’t need to start a court proceeding if you are separating.  In almost all cases, the uncoupling parties can totally resolve their legal issues without starting a lawsuit.  In spite of this, many lawyers, after their initial consultation with you, will automatically suggest you need to start a court action and get Judicial Case Conference (“JCC”)  scheduled.

If your lawyer suggests starting a court action and you agree, your lawyer will start your lawsuit in the Supreme Court of British Columbia because that is the only court that has jurisdiction to decide family property issues in British Columbia.

There is a lot of paperwork involved in starting a Supreme Court action and scheduling a JCC.  Most lawyers will charge at least $10,000 to take their client to the Judicial Case Conference.

If the only issues you have to resolve are support and parenting responsibilities, you should not be in the Supreme Court of British Columbia in the first place.  This is because there is a less formal and less expensive court in BC, the Provincial Court of British Columbia, which has jurisdiction over parenting and support issues, but not over family property division issues.

It is true that many cases settle at the JCC, but you can get to exactly the same settlement stage without each of you having to pay $10,000 in legal fees to get there.
A Judicial Case Conference is a mandatory mediation stage in every family law proceeding started in the Supreme Court of British Columbia.  Once the court action has been started and the other party has been personally served, the next step in the lengthy court process is that a JCC date is usually scheduled.  On the JCC scheduled date, the parties along with their lawyers have a private one hour meeting with a Master of the Supreme Court of BC.  The Master usually sits on the bench as a Judge, but at a JCC the Master steps down from the bench to the mediation table in the courtroom in an attempt to assist the parties get closer to settlement without spending yet more money. 

The Master at the JCC, just any other mediator, has no jurisdiction to make any decisions for the parties, and no jurisdiction to make any orders except with the consent of each party.  In preparation for the JCC, each party swears a Form 08 Financial Statement and exchanges it, along with all the required attachments, with the other party.

You don’t need to wait for a scheduled JCC date to download a Form 08 Financial Statement from the Supreme Court Family Rules Forms, complete it and give it to the other party with all the listed attachments.  You do not have to pay $10,000 each just to have a lawyer tell you that the exchange of the Form 08 Financial Statements is mandatory before an enforceable settlement could possibly be reached.

No lawyer can give advice on whether a family property division proposal is fair, or whether proposed support is adequate under the law without reviewing the full financial disclosure of both parties.

Save yourself and your family huge expense and grief, and rocket yourself closer to settlement of all your legal issues following separation, by coming to talk to me here at Resolution Place.

Tuesday, February 2, 2016

Arbitration v Collaborative Practice

Arbitration v Collaboration

Family Law Arbitration is becoming increasingly popular as the way many separating couples select to reach a separation agreement.  The big advantage Family Law Arbitration has over traditional litigation is that arbitration is fast, fair and private.  In some jurisdictions, arbitration is called Private Judging.  In Arbitration, you hire you own private judge rather than using the expensive and public court system.

In British Columbia, certain lawyers may become qualified under the Arbitration Act of BC to conduct family law arbitrations.  Instead of spending tens of thousands of dollars and endless amounts of time through the court process, couples can reach the same final enforceable resolution through arbitration in a matter of weeks for a fraction of the cost.  Final arbitral awards are converted into judgments just as Supreme Court decisions turn into judgments that can be enforced. Arbitrators have some of the same powers of a Supreme Court judge such as the power to subpoena a witness.

Arbitration and collaborative practice are similar in that they are both methods for separating couples to reach a final and binding resolution of all legal issues arising through their separation, without going to court.

Arbitration and collaborative practice are similar in that they are both private.  That is, all discussions in arbitration and collaborative practice are confidential and will never be made public.

How does family law arbitration differ from collaborative practice?

Arbitration and litigation are similar in that in each case the parties are handing over the decision making to a third person. 

In Collaborative Practice, the decision making always remains with the parties.  Collaborative Practice is about building consensus.  About 90% of collaborative cases reach a final resolution, and about 10% fall out of process.  That is remarkable when you think about it because it means in 90% of collaborative cases, the parties reached consensus on every item and they did not need a third party to make decisions for them.

Susan Kurtz of the Collaborative Law Group of Nelson is qualified as a Family Law Arbitrator, a Mediator and a Collaborative Lawyer.