Do Divorce Lawyers Need to Stop Being So Adversarial?

For the first time in over twenty years, Canada’s divorce laws have been updated. 

The updated Divorce Act focuses on preventing harassment and domestic abuse. I was happy to see some changes in language that attempt to move away from the “custody battle” language.

One of the goals of the updated Divorce Act is to push couples towards settling disputes outside of court. This can include mediation, arbitration, and the signing of separation agreements.

If this goal is successful, it will save Canadian taxpayers a lot of money. Staffing the court with judges, sheriffs, and court staff is extremely expensive.

Now that the federal government is pushing for changes, it will be up to divorce lawyers to follow. The lawyers will need to push their clients towards mediation and settling the dispute outside of court.

I would say from experience that about half of divorce lawyers truly care about their clients and want them to have a good experience. These lawyers want to make their client’s divorce experience as smooth as possible.

The other half of lawyers always seem to escalate issues and conflict, normally for financial gain. If they could have resolved a client’s issue in ten hours, at $300/hour, they would have received $3000.

Instead, the issue goes to court, and the law firm ends up working 40 hours on the file. Therefore, the law firm receives $12,000.

The new law elaborates on the previous guide that family law judges used “the best interests of the child.”

Lawyers are not equal. Unfortunately, it’s these lawyers that give others a bad name.

I have seen countless divorces in my six years in the divorce industry, and very few of them go smoothly. I often see good people at their worst behaviour. It’s not always the lawyers that increase the drama, it’s often the clients as well. When someone is a father of three children, and his wife takes off with the kids, suddenly the father is making decisions that they normally would not make.

When you get a text message for an amber alert, it’s often family law related. A parent has taken a child from school and ran off. The divorce industry doesn’t get a lot of media attention, because it’s something that people don’t want to think about.

The new law elaborates on the previous guide that family law judges used “the best interests of the child.” It will be up to the divorce lawyers to reframe their client’s mind, to get away from fighting over financial matters (houses and bank accounts.) Instead, they will have to explain to the judge why their plan is better for the child and the family.

There are also new guidelines under the new Divorce Act for those that want to relocate with their children. This is a common source of custody battles.  Let’s say that one of the parents is from China, and the other is Canadian. The Chinese mother wants to move back to Shanghai after the divorce, and of course, wants to bring the child. The father, who lives in Toronto, knows this means he won’t get to see his son often. Both parents are willing to go to the mat to fight it out.

The new laws are a big step forward in addressing some of the “behind the scenes” issues that come up during a separation. Family violence can turn a home into a place worse than the most violent of prisons. The impact of children growing up in a violent home is devastating. Children are robbed of their childhood. They can grow up to think that violence is okay.

The new laws are a big step forward in addressing some of the “behind the scenes” issues that come up during a separation.

The federal law changes are great, but along with the lawyers, the provinces will have to follow suit. The Family Law Act is the provincial legislation in Ontario and BC, with the Divorce Act being the federal law. You can see why separation and divorce laws are so complex.

 

Alistair Vigier is the CEO of ClearWay Law, a website that connects people with law firms in Canada and China.

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