Relationships can look very different these days.
And just as each relationship is unique, the appropriate legal process when a relationship breaks down can also look different, depending on the needs, goals and level of conflict that may exist between the separating spouses.
In Saskatchewan, there are a variety of process options that people may use to navigate separation and divorce.
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When considering how to approach separation, it is important to consider what process may be best suited to your particular needs and goals.
The purpose of this article is to provide further details of those process options:
‘Kitchen table agreements’
This is an informal process where spouses sit down together and decide on the terms of their separation. Often lawyers are not involved.
This type of agreement is cost-effective because it allows spouses to reach a settlement themselves.
However, these agreements can present risk if they are not properly documented and/or if there is a lack of disclosure and/or the agreement is fundamentally flawed as it relates to the applicable laws.
This is a good first step if parties generally know how they want to address issues arising from their separation. Once terms are agreed to, you may then have them formally documented to minimize the above-noted risks.
Negotiation
When spouses retain lawyers, going to court is rarely the first step. Rather, legal counsel (or other advisers or trusted persons) can help spouses try to reach a mutually acceptable solution through negotiation.
Negotiation sometimes happens through written correspondence or may occur through four-way meetings, where each spouse and their counsel meet together.
If terms can be agreed upon, then they can be reduced into a formal agreement signed by both parties.
Collaborative law
This process typically has both spouses retain legal counsel who are collaboratively trained.
It may also involve other professionals, such as financial advisers, accountants and/or mental health professionals.
At the outset of the process, both parties and their legal representatives sign a participation contract that states that if either party exits the collaborative process in favour of a court process, their collaborative lawyer can no longer represent that party in court.
Mediation
In this process a neutral third party (the mediator) facilitates discussion and helps the parties work toward a mutual agreement outcome.
In each of the above-noted processes, the parties are the decision makers. This means that any outcome must be by agreement. Should agreement be unable to be reached, then the parties may need to use a different process whereby a third party will impose a decision.
Those processes may include:
Arbitration
This is an out-of-court process in which a binding decision can be made on the parties by the arbitrator on any issue on which the parties cannot agree.
Arbitration can be an attractive option for family law matters because it offers privacy and more control over the process. Arbitration can also be combined with a mediation process, whereby the parties first try to resolve their issues by agreement, and if they cannot do so, then the arbitrator will make a decision.
Parenting co-ordination
This is a child-focused process in which parents meet with a parenting co-ordinator for help with interpreting or understanding their court order, arbitration award or separation agreement on parenting matters.
A parenting co-ordinator does not make major decisions regarding decision-making or the parenting regime but can make decisions regarding more minor parenting access issues and other matters incidental to parenting.
Binding pre-trial conference
A pre-trial conference is the last court-facilitated process to settle the matter before trial dates are set.
Typically, a pre-trial judge acts as a mediator and has no decision-making power. However, in a binding pre-trial conference, the parties agree that the judge will have decision-making power should they be unable to reach an agreement.
Court
If all other process options fail or are not suitable for the parties, then matters can be addressed through the family court. In Saskatchewan, family court is part of the Court of King’s Bench.
As of July 1, 2022, those who come to family court are required to attempt a family dispute resolution process by the close of pleadings before they may continue with any further court proceedings.
Mediation, arbitration, collaborative law and parenting co-ordination all constitute recognized family dispute resolution, as long as it is provided by a recognized service provider.
People can apply to the court for an exemption if there has been interpersonal violence, a parent has abducted a child from the other parent or there is some other urgency.
If you are unsure what process option may be best for you or suitable for your situation, an initial consultation with legal counsel can help better understand your options.
It may also be that the most suitable process option changes throughout the process as needs, goals and co-operation between spouses change.
Kimberly Visram is a lawyer, mediator and partner with Stevenson Hood Thornton Beaubier LLP in Saskatoon. Contact her at kvisram@shtb-law.com. This article is provided for general informational purposes only and does not constitute legal or other professional advice.
