Family law lawyer, Madison Goodacre, was recently featured in The Lawyer’s Daily. Madison discusses an amendment to the Divorce Act which placed a new duty upon family lawyers and the benefits of a separation agreement. Read the full article below.
On March 1, 2021, important legislative amendments to the Divorce Act, RSC, 1985, c 3 (2nd Supp), and
Children’s Law Reform Act, RSO 1990, c. C.12, came into force. It was not surprising that these amendments included a renewed focus on alternative dispute resolution.
The amendments even changed the terminology from “alternative” to “family” dispute resolution, presumably to communicate that these processes should not be considered as an alternative to the main process of court. Rather, they are part of a continuum of progressive steps that can be taken to try to come to a resolution.
New duty for lawyers: From duty to discuss to duty to ‘encourage’
What was surprising was that the amendments enhanced the duty placed upon legal advisers. Lawyers must now encourage their clients to try to resolve their issues through a family dispute resolution process unless it is clearly inappropriate in the circumstances. Prior to these amendments, lawyers were only required to discuss and inform their clients about alternative dispute resolution processes. So, how can lawyers fulfil this new duty? A good place to start would be to convey the benefits of separation agreements to their clients, and perhaps lawyers can get a little bit of help from the recent news headlines about Bill and Melinda Gates’ divorce after a 27-year marriage. Having kept their separation quiet for months, the pair were working behind the scenes with their lawyers to come to a separation contract, or a separation agreement as we call it in Ontario. The pair then filed for divorce with the court and asked the court to divide their property, business interests and assets as set forth in their separation contract.
As the fourth wealthiest person in the world, worth approximately $125 billion, Bill’s separation from Melinda must surely be one of the largest settlements in history. Though the details of their separation contract have not been made public, the Gates have clearly made use of the benefits of a separation agreement.
What is a separation agreement?
As family law practitioners know, most family law cases are settled by agreement between the parties without the need to go to court. Generally, such a process will conclude with the drafting of a Separation Agreement. Once properly signed and witnessed, the agreement becomes a legally binding domestic contract under Part IV of the Family Law Act, RSO 1990, c F.3.
A separation agreement sets out in writing how the parties agree to deal with the issues arising from their separation (and divorce, if applicable). It may cover property division, spousal support, child support and parenting issues, as well as many other topics. It then governs the parties’ interactions with and obligations and rights towards each other moving forward.
Unfortunately, the scourge of do-it-yourself separation agreements is on the rise. It is important to convey to clients that they should consult a lawyer when preparing and signing a separation agreement in order to ensure that their rights have been properly protected and that the agreement is executed in such a way that it will be enforceable. This upfront cost will likely save the client more expense down the road.
What are the benefits of a separation agreement?
There are many benefits and advantages to resolving a family breakdown by way of a separationagreement rather than going to court, including:
- the process is generally faster and cheaper;
- it is usually less stressful and emotionally draining because it is less adversarial than the court process;
- agreements are primarily negotiated between the lawyers, who convey their client’s position, so the parties themselves need only interact rarely, if at all;
- the process and outcome are normally more private for clients, compared to the public court process; and,
- there is more flexibility to deviate from how the courts are required to decide the issues and to tailor the client’s agreement and settlement of the issues to their family’s unique needs.
Of course, negotiations can break down and resolving the issues by way of a separation agreement may not always be
successful. In such a case, the parties may genuinely require the assistance of a judge to decide the issues that they
cannot agree on and a court proceeding will need to be commenced.
Nevertheless, counsel can and should encourage clients to sign a partial separation agreement where the parties can at least agree on how to resolve some of the issues in dispute. This will narrow the issues for the court proceeding and help to keep costs down. It will also ensure that lawyers are upholding their new duty to encourage clients to use family dispute resolution processes where appropriate.