The New Family Law Act and Innovative Problem Solving
I thought often of this couple’s spray painted declaration of love when I ran by each week until a weekend last summer when I noted that one of them had, with considerably less care, painted a large “x” through the heart. The message seemed clear. One of the lovers felt the relationship had run aground.
Underscoring the point, one or the other of them (or perhaps a new partner?) returned some days later to spray paint out the actual initials themselves so that, at least in terms of public consumption, all memory of the relationship could be erased.
I am reminded of this torrid (artistic license) summer romance when I look at the provisions of the new Family Law Act proclaimed as law in November of 2011 by the provincial government.
The new law makes a concerted effort to smooth the transition from romance to regret. It has clarified the law in many cases and, subject to your perspective, brought a new degree of fairness to the division of assets.
In terms of solving disputes, the legislation defines “family law dispute resolution” as including:
a) assistance from a family court counsellor
b) the services of a parenting coordinator,
c) mediation, arbitration, collaborative family law and other processes, and
d) prescribed processes.
In other words there is a new emphasis on dispute resolution outside the court house which can only be progress for the vast majority of separating spouses.
To return to the bad metaphor, the legislature wants to help “paint over” failed relationships with sensitivity and acknowledgement that an array of options is going to be important because every couple is unique.
The legislature has also defined a number of terms and addressed parenting of children in more neutral language, departing from the concepts of custody and access in favour of “parenting arrangements” which I believe will go a long way towards resolving conflict earlier in the period post separation, before parties have an opportunity to use their spray paint in a somewhat less collaborative fashion.
By acknowledging that one size does not fit all and that various tools are required in order to address the idiosyncrasies of marital breakdown, the legislature has been able to integrate all of negotiation, collaborative law, mediation, arbitration, and parenting coordination into our legislation without denying parties the ultimate satisfaction of spending all of their money on a trial if they so choose.
It is, of course, too early to talk in detail about how these innovations will play out in the real world, but it is a good effort on the part of the legislature. While passed in the fall sitting, much of the new act will be introduced over the coming 12-18 months. It is a commendable effort to streamline access to justice and attempts to clarify certain aspects of the division of assets and, as noted above, addresses parenting in a “less winner take all” fashion.
These efforts have been in part a response to the growing inability of separating parties to access justice. For many years the comment has been that the rich and the poor used the courts because the former could afford it and the poor could utilise legal aid.
Legal aid for families is now as quaint as the hula hoop. A thing of some nostalgia but difficult to find.
So in recent years the poor have joined the middle class in needing options to the court system to ensure that those who do need the intervention of a judge are not having to compete with the many who don’t, but feel they have few options. Those options now seem to be more clearly on the table and it will be incumbent on couples who are separating to seek out these options or risk having to bring out the spray paint.