What Is Collaborative Family Law in BC and How Does It Work?

If you and your spouse or partner want to settle your separation without going to court, you may have heard of collaborative family law. It is one way of working things out with the help of professionals, rather than having a judge decide.

This article explains where collaborative law sits in BC law, what the process generally involves, and what to think about if it does not work out. The details of any one process depend on the participation agreement and the professionals involved, so a lawyer can confirm how it would work for you.

This article covers the law of British Columbia.

Where collaborative law fits in BC law

The Family Law Act defines family dispute resolution as a process parties use to try to resolve disputed issues outside court. That includes help from a family justice counsellor, parenting coordinator services, mediation, arbitration and collaborative family law.

In Provincial Court, collaborative family law also counts as consensual dispute resolution for the Early Resolution Process. The Act itself imposes no general mediation-first rule, but parties must comply with any regulation requirements about mandatory family dispute resolution. In an Early Resolution Registry, parties must try at least one consensual dispute resolution session, unless a needs assessor finds they cannot access these services or a needs assessor or dispute resolution professional finds participation is not appropriate.

The participation agreement and the team

Collaborative processes generally start with the people involved agreeing in writing to the ground rules. This is often called a participation agreement. Its terms vary, so read it closely and have a lawyer explain it before you sign, especially what happens to the process if one person decides to go to court.

A collaborative process is usually built around meetings in which each person is supported by a lawyer. Some processes add other professionals, such as financial or family professionals, depending on the issues. Who is on your team, and what each person charges, is something to ask about at the start.

A lawyer advising a party in a family law dispute is a family dispute resolution professional under the Act. That brings a duty to assess whether family violence may be present, to consider how far it affects the party's safety and ability to negotiate a fair agreement, and to discuss with the party the advisability of various types of family dispute resolution. The professional must also tell the party that agreements and orders about guardianship, parenting arrangements and contact with a child must be made in the child's best interests only.

How the process generally works

• Each person gets legal advice and decides whether the process is suitable, including whether safety or power imbalance is a concern.
• Both sign the participation agreement.
• You exchange information. A party to a family law dispute must give the other party full and true information to resolve the dispute, and that information may not be used except as necessary to resolve the dispute.
• You meet to identify issues, explore options and negotiate.
• If you reach agreement, it is recorded in writing and signed.

Turning the outcome into something enforceable

An agreement respecting a family law dispute is binding on the parties, subject to the Act. A written agreement means one that is in writing and signed by all parties. Some kinds of agreement have extra conditions. A parenting or child support agreement is binding only if made after separation, or when the parties are about to separate and intend it to take effect on separation.

A written agreement under the Family Law Act can be filed in the Supreme Court by attaching it to a requisition in Form F17.1, and the court may then enforce it. A filed parenting agreement is enforceable as if it were a court order, but the court must set aside or replace all or part of it if satisfied it is not in the child's best interests. The court may also incorporate all or part of a written agreement into an order.

For property agreements, the rules on setting aside depend on whether the agreement was witnessed and on specific circumstances such as failure to disclose significant property or debts. Even then, the court can act if an agreement is significantly unfair.

What happens if it breaks down

Not every collaborative process ends in agreement. What happens next depends on your participation agreement, so check it before you start. Some processes require you to hire new lawyers if you go to court, which can mean extra cost and delay.

If you do end up in the Supreme Court, you will generally need a judicial case conference before serving a notice of application or supporting affidavit, unless an exception applies. Applications for a consent order are exempt. The court can also require parties to attend mediation, a settlement conference or another dispute resolution process. Another route is the Notice to Mediate (Family) process, which a party can start between 90 days after the first response to family claim is filed and 90 days before trial.

What to do next

• Ask a family lawyer whether collaborative law suits your situation, including any safety concerns.
• Ask for the draft participation agreement and read what happens if the process ends.
• Gather financial documents early, because full and true information is expected.
• Ask what each professional on the team will cost before agreeing to proceed.
• Have your final agreement reviewed before you sign it.

Frequently asked questions