Separation Agreements: Part 2 Procedural Options After Separation

Separation Agreements: Part 2 Procedural Options After Separation

Getting a divorce is relatively easy. The hard part is finalizing a Separation Agreement, which should be done prior to getting a divorce if you and your spouse have children, assets, or debts.  The following are the most utilized options available to you:

1. Exchange Disclosure and Negotiate 

Unless you and your spouse agree that you have access to all of the financial disclosure required to reach an agreement, you and your spouse should both exchange financial statements.  Information about how to fill out the BC Provincial Court financial statement can be found here, and information about how to fill out the BC Supreme Court financial statement can be found here.

Additional disclosure or expert reports regarding the children or finances may be required.

After exchanging all of the necessary disclosure, you and your spouse (or your lawyer and your spouse’s lawyer) may be able to negotiate a settlement, which will be outlined in a comprehensive Separation Agreement. 

If negotiations are unsuccessful, there are other options available to you before proceeding to court, namely family mediation and/or arbitration. 

2. Mediation

Mediation is a good option for many couples. Free mediators are available through the Justice Access Centre if either of the parties is considered “low income.” (Only one party needs to have a low income, but the party with the low income must apply for free mediation through their nearest Justice Access Centre.) Free mediation through the Justice Access Centre focuses on issues regarding children, including child support, parenting time, and parental responsibilities. Lawyers are not permitted to attend mediation through the Justice Access Centre, but the parties may be required to meet with a lawyer to obtain independent legal advice on an agreement reached in mediation prior to signing it. 

Private mediators charge an hourly fee for their services, but a good mediator can save parties hundreds, or even thousands of dollars in legal fees. Mediation is typically booked for one full day, but it may take several days to reach an agreement if there are several issues. Either party (or the mediator) can stop the mediation at any time if he or she feels that it is unlikely to be successful. There is no obligation to agree to anything, and everything said in mediation is confidential and cannot be used against you in court (with only rare exceptions). 

It’s best to attend mediation when both parties are willing participants, but you can ask a judge to order mediation in Provincial Court. If your case is in Supreme Court, you can force your spouse to attempt mediation by serving him or her with a Notice to Mediate, pursuant to the Notice to Mediate (Family) Regulation. For more information about this option, click here.

Parties can choose to attend private mediation with or without lawyers. Although it’s expensive to pay the hourly rates of a lawyer and mediator for a full day of mediation, parties tend to have a better chance of finalizing an agreement if both are represented by lawyers. If either party is self-represented, that party will usually be required to obtain independent legal advice prior to signing the agreement. This is where agreements are often derailed and all of the hard work done in mediation unravels. If both parties are represented by lawyers, the parties will receive legal advice throughout mediation, and the parties will leave mediation with a binding agreement that can be filed in court. Once an agreement is filed in court, it is just as legally binding as a court order.

3. Mediation-Arbitration or Arbitration

In mediation-arbitration, you and your spouse will attend mediation and use your best efforts to resolve all of your issues. If that isn’t possible for whatever reason, the mediator will become an arbitrator, which is essentially like a privately retained judge. Like court, you can subpoena witnesses to be examined and cross-examined in arbitration. All witnesses (including you and your spouse) will be under oath to tell the truth. Once each party has had an opportunity to make their case, the arbitrator will make a final decision. The arbitrator may draft an Arbitration Order, or if the parties agree to use “Final Offer Selection”, the parties will each submit a final settlement proposal and the arbitrator will simply choose the one that is the most reasonable. 

Arbitration is often preferable for parties because it allows them to essentially pick their judge. In court, the judge that you’ll end up with at trial is completely out of your control, and you may even find yourself before a judge who has minimal experience in family law proceedings.

Arbitration may also be preferable because it is more private and less formal than court. Rules of evidence and procedure are simplified, which often allows the parties to obtain a final order faster and more cost-effectively than they would if they went to trial. With that said, a cost-benefit analysis should be made on a case-by-case basis. An arbitrator’s fees generally range from $350 – $500 per hour. Although there are daily fees to attend a Supreme Court trial, the parties do not need to pay the judge for his or her time. You and your ex spouse may agree to divide the arbitrator’s fees, or you can agree that the unsuccessful party will have to bear the full cost. 

4. Court

Provincial Court

Provincial Court tends to be easier for self-represented parties to initiate their case because the first few appearances will likely be in “remand court,” where duty counsel (free lawyers) are available to speak on your behalf and provide you with legal advice. Parties can apply in either Supreme Court or Provincial Court for orders regarding children, child support, spousal support or protection orders. 

Supreme Court

Parties are required to go to the Supreme Court for any orders regarding property and debts, and only the Supreme Court has the jurisdiction to grant a divorce. 

In the past, parties had to choose whether to have their cases heard in Supreme Court or Provincial Court, however, it’s becoming more common for parties to deal with their parenting issues in provincial court while their property, debt, and divorces are dealt with in Supreme Court. 

Trials, particularly in Supreme Court, are very expensive and success can never be guaranteed. If you believe that a trial will be necessary in order to resolve issues between you and your spouse, it is crucial that you meet with a professional to ensure that your documents are filed correctly and that all of your evidence is properly put before the judge.