The Family Law Act: a mandated obligation to guide, educate and empower clients through dispute resolution

There is a legal cultural shift that has been effected in British Columbia as a result of the coming into force of The Family Law Act on March 18, 2013. This shift is the direct result of the codification of an obligation for both counsel and the parties, in Part 4 of the Act, to use appropriate processes to reach effective agreements in a timely way without going to court once a professional has determined that a non-court process is appropriate.

Part 4 is a clear direction to family dispute resolution practitioners to educate themselves and their clients with respect to cooperative and collaborative approaches to resolving family law disputes. The reality in family law is that most cases do and should settle and that families (and in particular children) deserve an approach that will "do no harm" – something which ought to be the credo of any professional involved in the resolution of family disputes.

The purposes of Part 4 are:

1. to ensure that parties to a family dispute are educated about various methods available to resolve the dispute. I would respectfully submit that as family dispute resolution professionals we ought to do whatever we can to empower our clients. We can do that by providing legal information and details about resources in the community; making referrals to other professionals such as psychologists, counsellors, financial planners and accountants; drafting correspondence and materials in plain language; and taking the time to walk our clients through processes, materials and the law to ensure that they are fully informed and have a good understanding of how these dynamics may affect the outcome of their matter;
2. to encourage parties to resolve their dispute through agreements and appropriate family dispute resolution before making an application to court;
3. to encourage parents and guardians to:
   1. resolve conflict other than through court intervention (I give each client who attends a consultation with me a document called "Choices" which provides an explanation of the different processes for dispute resolution available to them both outside of the litigation process and during litigation. It also defines family violence as set out in the Act and underscores the importance of considering the impact and effect of family violence and the safety of the client and the client's family members when deciding which process may be appropriate);
   2. create parenting arrangements and arrangements respecting contact with a child that are in the best interests of the child.

Under the Act, “family dispute resolution professionals" include family justice counsellors, parenting coordinators, mediators, arbitrators, and collaborative family law professionals. Section 8(1) of the Act mandates that all family dispute resolution professionals including lawyers screen for family violence and, having regard to the assessment, section 8(2) sets out that the professional must:

• discuss with the party the advisability of using various types of family dispute resolution (which is now a defined term in the Act) to resolve the matter, and
• inform the party of the facilities and other resources known to the family dispute resolution professional that may be available to assist in resolving the matter.

Before beginning the discussion about process options, the following must be considered:

• safety;
• conflict – what causes it, and what does the conflict look like when it does take place?
• communication;
• trust;
• the client’s ability to negotiate, and the supports that may be needed to educate and empower the client;
• complexity of financial matters and what will you be looking for in disclosure – are there disclosure issues already?
• complexity of parenting issues – what is parenting history; what are difference in parenting philosophies? Has there been Ministry involvement? Are there collaterals who contribute to conflict or who can assist with the facilitation of dialogue through conflict? Etc.
• health concerns including mental health issues and capacity;
• substance use or abuse.

The Family Law Act’s mandate to make the family law environment a kinder, gentler place is both important and laudable. We as practitioners need to take the lead now from the work that has been done by the legislative drafters and provide our clients and the community with family-directed services which will serve them well after we are no longer involved with their lives.

About the Author

Audra Bayer is a senior associate with MacLean Family Law in Kelowna.