Andy Nichols
Calgary family court judge Victor Tousignant helped form the Association of Collaborative Family Lawyers
Avoiding adrenaline-fuelled family court antics
When Sean’s 18-year marriage ended he hired a collaborative family lawyer. Through a series of four-way meetings Sean his ex-wife and their two lawyers hammered out an agreement in four months — a fraction of the time it would have taken if they had gone to court. After that they applied for an uncontested divorce. Although divorce is typically stressful collaborative lawyers try to dissipate emotions and tensions during negotiations. And in the end Sean calls the process a “win-win” situation. “You don’t drag your children through anything that’s ugly and dirty” he adds.
The headaches and heartaches most soon-to-be divorcees experience have for the most part been removed thanks to a few lawyers who rebelled against the legal system eventually moulding a collaborative family law model used today in Alberta.
For a profession built solidly on tradition turning away from court toward a “collaborative model” is a relatively new concept introduced in Alberta in 2001. Since then change has been gradual yet significant happening without much public fanfare. Most couples facing marriage breakdowns are unaware this option exists. With divorce rates at disturbing levels and children sometimes getting lost or damaged in the process collaborative family law is important to society’s well-being. At this point there are about 190 registered collaborative family lawyers in Alberta.
Ripples of Discontent
Canada’s legal system is based on centuries of British law built on a win-lose model. Some lawyers thrive on adrenalin-fuelled courtroom drama. But many have found the constant confrontation and argument hard on their physical and mental health. And witnessing how courtroom litigation can be a gut-wrenching experience for clients and their families particularly in divorce cases some lawyers wondered: Is there not a better way?
Calgary lawyer Beryl McNeill sensed a need for change 20 years ago when she referred to family courts as a “blunt instrument.” Long before divorce was legal in Canada courts were designed for criminal law and debt resolution — not for emotional family breakups. Today as chair of the Association of Collaborative Family Lawyers as well as the chair of the Canadian Bar Association’s family law section for southern Alberta she is part of a growing movement of lawyers that tries to put family first when it comes to family law. That means protecting children from conflict while settling parenting support and property issues out of court. This model was devised to empower couples to design their own settlements and futures while maintaining respect and dignity throughout the process.
Humble beginnings
In 1989 veteran Minnesota litigation lawyer Stu Webb concluded after 26 years in practice he loathed his job. Even when he “won” cases for him it felt like no one was victorious. While considering quitting he found a like-minded dissatisfied colleague. Together they came up with the “kitchen-table idea” — conflict would be resolved by all parties and their lawyers sitting down and talking. No court litigation. And after it was successful on a few cases on January 1 1990 Webb declared himself a “collaborative lawyer.”
With informal talks and potluck suppers Webb attracted others interested in the new approach and news spread across the continent. It reached California where social worker Nancy Ross and psychologist Peggy Thompson had been working with divorcing families. Their work complemented collaborative law and today a key element in the collaborative model is the availability of other experts such as child specialists mental health professionals business evaluators and financial consultants.
Webb Ross and Thompson helped form the American Institute of Collaborative Professionals which in 2002 became the International Academy of Collaborative Practitioners. Word spread and membership swelled. Today the IACP has over 3000 members and collaborative law is practised in 22 countries.
Meanwhile a group of Eastern U.S. lawyers had established The International Alliance of Holistic Lawyers (IAHL) advocating peaceful solutions to conflict with an emphasis on clients’ personal growth and healing. Divorce and other areas of law including criminal defence accident claims and civil disputes (small claims business conflicts) fit the holistic philosophy. For example a holistic lawyer representing a man charged with drunk driving would help her client see how his actions had affected others and encourage him to take responsibility. In addition to representing him in court she might refer him to Alcoholics Anonymous; she might urge him to volunteer with paraplegics injured by drunk drivers. A defendant who demonstrates a proactive attempt to atone for his crime and change his behaviour might get a lighter sentence from the judge.
Alberta’s high standards
Victor Tousignant now a Calgary family court judge heard about the relatively unknown concept of mediation at law school in 1985. Intrigued he took some courses. And as chair of the family law section of the Canadian Bar Association in 2001 Tousignant gathered a small group of local lawyers interested in exploring a gentler easier way for divorcing couples to settle. Together they formed the Association of Collaborative Family Lawyers (ACFL) set up standards got training wrote articles and lobbied for change.
Calgary lawyer and co-founder of the ACFL Lonni Balbi teaches the collaborative model to University of Calgary law students and Canadian family court judges. He says the Alberta model has “the highest standards in the industry” covering ethics competency integrity training client representation and confidentiality.
Over the years Alberta lawyers practising collaborative law have influenced other provinces. They designed a website for the newly formed Collaborative Family Lawyers of Canada an umbrella for existing and upcoming provincial associations. Delegates including McNeill Balbi and Tousignant are currently lobbying for national changes by putting forward a resolution with the Canadian Bar Association to have dispute resolution courses such as mediation mandatory in law schools.
In October 2005 their efforts paid off with the new Alberta Family Law Act which streamlines the court process educates couples about collaborative law helps steer clients through the system and provides family support services. Moreover mediators are available to applicants who do not have their own lawyers and it is free to low-income earners.
Mediation is one of the many tools of the collaborative model used both in court and in lawyers’ offices. Anyone involved in a child protection or guardianship case including grandparents can tap into court mediation. The introduction of court mediation has reduced the number of trials by more than half saving time and money for clients and taxpayers. Both the Divorce Act of Canada and the Alberta Family Law Act require lawyers to explain the mediation process and how to obtain it to their clients.
Tousignant says a main benefit of the act is that there are rarely custody battles. In fact the act avoids hot-button words such as “custody” and “access” replacing them with “parenting time” and “contact.” Studies have shown that it’s not divorce that hurts children – it’s conflict. “Litigation over the children” says Tousignant “is almost always universally damaging to them and sometimes the damage is very long-lasting.”
Another significant change Tousignant and Balbi helped develop is the dispute resolution officer (DRO) project in the Court of Queen’s Bench. The project based on a similar one in Toronto and operating only in Calgary has a roster of volunteer collaborative family lawyers in the city who help couples reach resolutions out of court. Since the project began in 2001 more than half of the cases have been settled on an interim or permanent basis. Today those submitting a court application for child support or to change an existing order must see a DRO.
Collaboration for Young Offenders
The concepts of collaboration resolution healing growth and change are also evident in Calgary’s youth criminal justice system. Operating since 1998 a program called Calgary Community Conferencing brings together organizations such as Calgary Family Services schools and youth probation officers to help reform young offenders. If victims agree they and the young offender sit down to discuss the effects of the crime then come up with a resolution package or an action plan for the offender. This often occurs after a guilty plea and before sentencing.
“Almost universally the young person comes away with a real sense of the impact of the crime” says Tousignant. He adds “There have been some very dramatic almost reconciliations derived from those sorts of sessions.”
What’s next?
The founders of collaborative family law in Alberta had hoped their model would eventually replace litigation. One reason it hasn’t yet is that many people aren’t aware of it. As well interested lawyers must be trained and certified at their own expense. Many who are registered as collaborative family lawyers are reluctant to limit their practice preferring to give their clients a menu of choices which includes litigation if necessary. Tousignant says some couples want “to punish the other” and will “pay any amount to get what they want.”
He points out that with any human conflicts “the solution the parties arrive at themselves with the help of whatever experts be those lawyers or psychologists is particularly when it relates to children universally going to be better than any solution that a judge imposes.”
For more information check out collaborativelaw.ca .
Side Bar:
The Collaborative Model
• Lawyers and clients sign a contract that they will not go to court.
• Clients their own lawyers and sometimes other skilled advisors meet to resolve all issues (parenting support family home and division of family assets).
• All parties agree to full disclosure of all relevant facts and strive towards creative problem-solving in a respectful ethical honest manner. No blaming or revenge.
• If necessary the process may include third-party mediation and arbitration.
• A written agreement is reached and signed with lawyers then obtaining court approval.