A lawyer must be knowledgeable about dispute resolution options1 relating to family law matters to a degree sufficient to advise the client of their characteristics, availability and the appropriateness2 of each for a particular client.3
1. Dispute resolution options include but are not limited to, judicial settlement conferences, non-judicial settlement conferences, mediation, arbitration, litigation, collaborative family law process, negotiation and conciliation.
2. McClenahan v. Clarke, 2004 CanLII 25843 (ON S.C.): The solicitor failed to meet the standard of care of a reasonably competent, prudent and diligent generalist lawyer practicing matrimonial law. He had been negligent by failing to consider the emotional health of the client and its impact on her decision-making in settling a matter. Wainwright v. Wainwright, 2012 ONSC 2686 (Ont. Superior Court of Justice): Beginning at para.129, discusses appropriateness of mediation when domestic violence is present. Includes helpful cites of related literature. Related prior decisions in this proceeding also discussed appropriateness of court ordering future obligation to resolve parenting issues through mediation/arbitration.
3. Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), s. 9: (2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters; section 9(3) Every document presented to a court by a barrister, solicitor, lawyer or advocate that formally commences a divorce proceeding shall contain a statement by him or her certifying that he or she has complied with this section.
Be aware that some forms of alternative dispute resolution, such as mediation or settlement conferences, may not be appropriate where a significant imbalance of power exists between the parties.
Armoyan v. Armoyan, 2015 NSSC 46 (CanLII) A settlement conference was agreed upon by both parties, with filing deadlines for the required documents. Costs were awarded when the wife sought to cancel the settlement conference after the husband had already prepared and filed the required documents.
Wainwright v. Wainwright, 2012 ONSC 2686 (CanLII): A negotiated agreement on parenting issues may be over-ridden by the Court’s parens patriae jurisdiction; see also McAlister v. Gallant, 2012 ONCJ 565 (CanLII), para. 60.
Thomson v. Thomson, 2012 ONCJ 141 (CanLII): Breach of part of an agreement to resolve issues through mediation/arbitration may not eliminate the obligation to pursue a solution through mediation/arbitration. The father’s breach was failing to provide financial disclosure. Once that was remedied the mother was obliged to pursue resolution of financial issues through the agreed process.
In Webb v. Birkett, 2011 ABCA 13, the Alberta Court of Appeal held that the defendant solicitor Birkett was negligent in representing the plaintiff Webb in a collaborative family law settlement. The Alberta Court of Appeal held that CFL practitioners must meet the same standard of care required of other family law practitioners including taking appropriate steps to get the financial information needed to properly advise the client. A lawyer must obtain sufficient reliable information to be able to ascertain what the client would likely receive, or be required to pay, for spousal support, child support and matrimonial property division should the matter be resolved at trial, and so advise the client. A lawyer should tell a client who takes the position that he or she wants to settle without having received full information from the other side that they may therefore be accepting less, or paying more, than what would be required according to law, and provide to that client an assessment of the impact of the risk, including estimates of the value of what might be lost, or paid above what was necessary, to the extent possible, on the basis of the information then available. A prudent solicitor would put this advice in writing.
Chapman v. Chapman, 1996 CanLii 5383 (NS S.C.): “Without Prejudice” communications are only without prejudice if a settlement is not achieved. However, once an unconditional and complete settlement is reached, the privilege which existed is removed. When negotiations are clearly finalized, the negotiations were clear, and both counsel and clients knew the terms of settlement and accepted them, the settlement is concluded and binding on the parties.
Comeau v. Comeau, 2007 NSSC 8 (CanLII): The court found that a property settlement agreement rendered by way of settlement conference was enforceable despite the wife’s claim that she had fundamentally misunderstood the agreement. The court must conclude that the agreement was obtained by duress, undue influence, was unconscionably or based on a fundamental mistake in order to set it aside.
Durocher v. Durocher, 1991 CanLII 4237, 106 N.S.R. (2d) 215 (T.D.)): The courts encourage settlement, and respect agreements. Once a separation agreement is executed, the affairs have been settled on a permanent basis. Once a written agreement is entered into, there is a heavy onus in law that arises to set aside the agreement or vary without consent, specifically that there was duress, undue influence or the agreement is unconscionable.
Rother v. Rother, 2005 NSCA 63 (CanLII): Agreements rendered through settlement conferences are binding.
Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012:
- rule 3.1-1 “Competent Lawyer”
- rule 3.2-4 “Encouraging Compromise or Settlement”
- rule 3.2-9 “Clients with Diminished Legal Capacity”
- section 5.1 “The Lawyer as Advocate”
- section 5.6 “The Lawyer and the Administration of Justice”
- section 5.7 “Lawyers and Mediators”
- section 7.2 “Responsibility to Lawyers and Others”
ADR Institute of Canada provides information about ADR and access to mediators and arbitrators.
Resolving your disputes: Think about your options, Canada, Department of Justice
Best Practice Guidelines for Lawyers Practicing Family Law (2011) Law Society of British Columbia
Supreme Court (Family Division) – Mediation program. Each spouse pays a fee based on his or her income.
Family Mediation Canada – contains a list of trained mediators.
Mediation and collaborative family law, Legal Information Society of Nova Scotia
Collaborative Family Law
Collaborative Family Lawyers Association
Mediation and collaborative family law, Legal Information Society of Nova Scotia
From the Family Law Nova Scotia website:
Casey, Patrick L / Looking ahead: the challenges facing collaborative law in Nova Scotia (December 2003), in Society Record vol. 21 no. 6 p. 8.
Elliott, Robyn L. / Collaborative family law (2002), in Nova Scotia Law News vol. 27 p. 33.
Haynes, John M; Haynes, Gretchen L. / Mediating divorce: casebook of strategies for successful family negotiations — San Francisco: Jossey-Bass, 1989. [KB 138 H424 1989].
Howieson, Jill and Lynn Priddis. A Relational Model of Family Lawyering: Exploring the Potential for Education, Practice and Research (2014), in Canadian Journal of Family Law (2014 29 Can J Fam L 173-210).
Irving, Howard H. / Family mediation: theory and practice of dispute resolution — 2d ed. — Toronto: Carswell, 1987. [KB 138 I72 1987]
Landau, Barbara; Wolfson, Lorne; Landau, Niki. / Family mediation, arbitration and collaborative practice handbook — 5th ed. — Markham, Ont.: LexisNexis Butterworths, 2009. [KB 138 L253 2009]
MacDonald, James C; Wilton, Ann. / The 2009 annotated Divorce Act — Toronto : Thomson Carswell, 2008. KB 138 M135 2009
Macfarlane, Julie / “What is beneath the hype of collaborative family law?” (September 23, 2005), from The Lawyers’ Weekly.
Noble, Cinnie. / Family mediation: a guide for lawyers — Aurora, Ont.: Canada Law Book, 1999. [KB 138 N747 1999]
Nova Scotia Barristers’ Society / How lawyers resolve family law disputes
Palliser Conflict Resolution / Explaining collaborative law to a family law client (September 2005), in Collaborative law: a useful tool for any area of practice. [KB 137 N935C 2005]
Shields, Richard W; Ryan, Judith P; Smith, Victoria L. / Collaborative family law: another way to resolve family disputes — Toronto: Thomson Carswell, 2003. [KB 125 A7 S556 2003]
See also: Department of Justice Canada, 2005: The Emerging Phenomenon of Collaborative Family Law
Approved by Council on March 25, 2011