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Difference between revisions of "Divorce (3:IV)"
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Parties may wish to retain a private family law mediator to assist them in mediating a resolution to their family law matter. They may contact the British Columbia Mediator Roster Society for names of family law mediators. See [[Governing Legislation and Resources for Family Law (3:I)#18. The Law Society of British Columbia - Family Law Mediators | British Columbia Mediator Roster Society]]. Not all family law mediators are listed on the roster, and there are many family lawyers who are specifically trained and accredited in family law mediation. | Parties may wish to retain a private family law mediator to assist them in mediating a resolution to their family law matter. They may contact the British Columbia Mediator Roster Society for names of family law mediators. See [[Governing Legislation and Resources for Family Law (3:I)#18. The Law Society of British Columbia - Family Law Mediators | British Columbia Mediator Roster Society]]. Not all family law mediators are listed on the roster, and there are many family lawyers who are specifically trained and accredited in family law mediation. | ||
The new ''FLA'' favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (s 4 ''FLA''). It also formally recognizes the role of and duties of family dispute resolution professionals (Section 1 -8), family justice counsellors (section 1-10), and parenting coordinators (Division 3). | The new ''FLA'' favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (s 4 ''FLA''). It also formally recognizes the role of and duties of family dispute resolution professionals (Section 1-8), family justice counsellors (section 1-10), and parenting coordinators (Division 3). | ||
=== 6. Collaborative Divorce === | |||
Another option for parties dealing with family law matters is the Collaborative Divorce Model. This offers an option for parties to resolve disputes respectfully and without going to Court. Parties work out a negotiated settlement with the help of collaboratively trained professionals including (as needed) lawyers, divorce coaches, child specialists and financial specialists. This allows the parties to negotiate a settlement without the threat of Court. If the parties are unable to resolve matters through the Collaborative process, the Collaborative professionals will not be involved in Court proceedings. See the websites listed in [[Governing Legislation and Resources for Family Law (3:I)#16. Collaborative Divorce | Collaborative Divorce]] for more information. | |||
=== 7. Rule 7-1: Judicial Case Conferences === | |||
In cases where relief other than a simple divorce is sought in the Supreme Court, Rule 7-1 of the Supreme Court Family Rules (British Columbia) requires that a judicial case conference (JCC) be held before a party to a contested family law proceeding delivers a notice of application or affidavit in support of an interlocutory application to the other party. The purpose of a JCC is to help the parties to come to an agreement on some or all of the matters at issue, to identify the issues that are in dispute and those that are not, explore alternatives to litigation, to schedule disclosure, discoveries, the exchange of documents, and to schedule interim applications and the trial date. JCCs may be heard by either judges or masters and are set for approximately 1-1/2 hours. Parties can set more than one Judicial Case Conference. | |||
=== 8. Divorce Law and First Nations People === | |||
Special concerns arise in cases involving First Nation People registered under the ''Indian Act'', RSC 1996, c 23,s 68. The ''Indian Act'' sets out guidelines for and definitions of Aboriginal people, and defines who is eligible for “status”. Only “status” people are affected by the legislation under the ''Indian Act''. One spouse’s treaty payment may be directed to the other “where the Ministry is satisfied he deserted his spouse or family without sufficient cause, conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or has been separated by imprisonment from his spouse and family” (''Indian Act'', s 68). As well, reserve land allocated by a certificate of possession cannot be dealt with in the same manner as a matrimonial home as the rules in the ''FLA'' do not apply to reserve land. However, in such cases, the Court may ask that the spouse in possession of the reserve land pay cash compensation to the other spouse (''George v George'' (1997), 30 BCLR (3d) 107). Keep in mind that most provincial laws apply to Aboriginal people and reserve land, unless they are in direct conflict with the ''Indian Act''. Further, courts will almost always take the cultural identity of the children into consideration when making an order for custody; see e.g. ''D.H. v H.M.'', [1999] SCJ No 22, and see ''Van de Perre v Edwards'', [2001] SCJ No 60. | |||
Furthermore, for First Nation Peoples living on reserves, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act'' (S.C. 2013, c. 20) applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46). | |||
=== 9. Other Procedural Options === | |||
There are many other procedural options available to parties in Family Law disputes. Section 8 of the ''FLA'' requires counsel and other Family Dispute Resolution Professionals to discuss the advisability of the various types of family dispute resolution, which include those listed above as well as the following: | |||
*(a) Mediation | |||
*(b) Family Law Arbitration. See http://www.justicebc.ca/en/fam/help/arbitrators/index.html for more information | |||
*(c) Med/Arb, which is a combination of both Mediation and Arbitration. | |||
*(d) Judicial Settlement Conferences pursuant to Rule 7-2 of the ''Supreme Court Family Rules'' | |||
*(e) The use of a Parenting Coordinator to address ongoing parenting and communication issues between the parties after an order or agreement has been reached for the parenting arrangement. For more information see http://www.bcparentingcoordinators.com/ | |||
== I. Availability of Divorce Services in BC == | |||
=== 1. Legal Aid === | |||
Legal Aid will provide extremely limited assistance to those who meet their income requirements. Clients must also have a risk or history of family violence, or a risk or history of child abduction, to be eligible for this service. Legal Aid will not assist with divorces. | |||
=== 2. LSLAP === | |||
LSLAP can no longer aid in filing uncontested divorces or any other family law matter. | |||
=== 3. Lawyers === | |||
All lawyers will expect an initial payment from their client. The amount of the initial retainer will vary depending on the lawyer’s hourly rate and his or her estimation of the complexity of the case. The cost of a simple, uncontested divorce begins at approximately $1,000 and up. Advise clients to use the Lawyer Referral Service (604) 687-3221 or 1-800-663-1919. The first half-hour will only cost $25, with the lawyer charging his or her standard rate thereafter. | |||
To minimize costs when retaining a lawyer, clients should be advised to: | |||
*negotiate the cost of legal services in advance, so they do not come as a surprise; | |||
*personally collect all necessary documentation rather than pay the lawyer to do it; | |||
*call the lawyer only when imparting necessary information (every phone call costs money); | |||
*use Family Court and Supreme Court resources (such as Family Justice Counsellors) if appropriate; | |||
*ask for regular or scheduled billing to monitor escalating legal costs; | |||
*carefully read all correspondence sent by the lawyer; and | |||
*treat the lawyer as a professional. | |||
