There is a lot of talk these days about what is called collaborative family law or collaborative divorce. So what do these terms mean, and how does collaborative family law work?
Basically, the idea is that each spouse hires a lawyer and their lawyers try to broker an agreement between the parties thereby avoiding the Court process.
While the theory sounds good, the reality is that this process should be avoided. Ultimately it can cost you more in terms of money and time, and you may have to resort to the Court process anyway.
If you do have to go to Court, then you have simply wasted your time and money, but achieved absolutely nothing. Worse yet, you don’t even get to keep the lawyer you were working with and who likely has intimate knowledge of your matter. So if you’ve ever heard of Square One, this is the place. The problem is you just spent time, effort, energy and money to get to Square One because you were chasing the ‘collaborative family law dream’.
Most collaborative family lawyers sign an agreement that if they cannot resolve the matter through negotiation, then they cannot be retained if the matter goes to Court. That means you must bring a new lawyer in and get him or her up to speed on your matter. And, of course, then entails additional legal fees. Ultimately, when the collaborative family law process fails (and it does more often then one might think), you simply end up frustrated and worse off financially than if you had commenced Court proceedings right from the start.
But we haven’t even come to the best reason to avoid the collaborative family law process.
The best reason to avoid the collaborative family law process is because of section 56(4) of the Ontario Family Law Act. This section enables a party to apply to the Court to set aside a separation agreement. So even if the collaborative family law works and you end up with an agreement, the reality is that the other side can apply to the Court to have that agreement set aside. Whether they would be successful or not is another matter, but who wants to take that risk? Especially when Court orders are much more difficult to get overturned on an application.