Many clients face a dilemma – do they engage with their spouse in front of a neutral third party to try to work things through – or, do they retain a lawyer to commence proceedings in order to safeguard their legal position? Clients wonder – will I be perceived as weak if I suggest mediation to my spouse?
The idea of the pit bull lawyer mauling the other side to pieces is not far from our memory. The practise of "He said / She said" Affidavits, slinging mud at the other side, are far from long gone.
Yet, there is a reason why more British Columbians are resorting to mediation in resolving their family disputes. There is a reason the new Family Law Act encourages mediation and alternate dispute resolutions, and that reason is simple: lawyers and judges do not know your family as well as you do. Only you can create, with the assistance of a mediator, an agreement that makes sense for your family.
We are moving away from the view that only the tough lawyer approach will ultimately serve you best, but mediation may not be appropriate in all circumstances. If there has been a history of violence or of serious power imbalances, either physical, emotional, or financial, mediation may not be appropriate. If you fall into this category, a lawyer may be required in order to assert your legal rights and preserve your legal position.
There are situations where the parties' relationship has deteriorated to the point where engaging in on-going negotiating, even with a mediator, is simply impracticable.
Mediation is voluntary and it takes two willing and cooperative people in order for the process work.
Almost all other times, mediation ought to be looked at as a viable option.
An experienced mediator should be able to sit the two parties down and identify the numerous issues to be resolved. Through respectful communication and by giving each party the opportunity to be heard, resolution, in time, should follow. It is crucial to keep your eye on the target – that being an expeditious, less costly, interest - based and child- centered agreement.
Lisa Sirlin, Lawyer and Mediator at Deer Lake Law Group encourages those going through the process of separation or divorce to contact her so that she can work together with both spouse to create a working interim plan and a long-term solution for your unique family situation.
My experience has been that there are three big interrupters of relationship success:
Most of our waking time is spent at work. Many of us bring work home either in a brief case or in our minds. The work and life balance between spouses can only be achieved through great effort and at a cost. Many of us must pick between more income or a happy relationship at home.
When the work day is done, what little time is left is often dedicated to parenting. Lost in the equation is the relationship between partners. Like the choices we must make about work, we need to make the same choice about our children. In order for the relationship between partners to survive and prosper, each partner must choose to allocate time to the partnership. Relationship time will always be limited and should be treated as a precious.
3. Other People:
In-laws, family and friends all have opinions about each partner in a relationship. These opinions can be very disruptive to the relationship. Frankly, these opinions are often very disruptive to the restructuring that must take place after a relationship has broken-up. When in-laws, family and friends start to distract us from our relationship goals it is important to put a stop to this. We live with the severe consequences of a relationship failure while the in-laws, family and friends simply have another thing to opinion about.
Family mediation is an excellent way to by-pass a system that for years, has had judges make rulings for families based on their own sense of what is right and fair, and based on precedence that is, in and of itself, subjective and case specific.
The new Family Law Act which will come into effect on March 18, 2013 emphasizes the value and great potential in family law mediation. Under the new Act, section 8 (2) sets out that the professional must:
• discuss with the party the advisability of using various types of family dispute resolution (which is now a defined term in the Act) to resolve the matter, and
• inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the matter.
Under the current Family Relations Act, the court cannot impose mandatory mediation on separating couples. However, the new Statute not only encourages dispute resolution by defining it in the Act, but gives the court the right to impose mandatory mediation in certain circumstances.
It is time for families to maintain control of their destiny with the assistance of trained, neutral, third party mediators who can assist in creative, legally sound solutions for separating families, in less time and for a fraction of the cost.
If you are thinking of doing your own divorce, you do not need to buy a kit or pay for any forms online. All of the forms and detailed instruction booklets are available free at the following sites:
• Free Divorce Forms.
• Free Step by Step Guide.
Who Must Pay Child Support
The non-custodial parent by law is required to pay child support.
Child support is the right of the child. It is not a right of the custodial parent. The obligation to pay child support arises automatically, even if there is no agreement or Court Order.
When To Pay Child Support
The obligation to pay child support commences immediately upon separation or birth of the child. The Court will award retroactive support going back to when the obligation arose or to such other time as the Court deems just. However, the court generally will not go back more than a year before child support was originally requested.
Agreement That Support Does Not Need To Be Paid
Because the child support belongs to the child, parents cannot agree that support does not need to be paid unless there are very compelling reasons. Further, the law does not permit one parent to permanently relieve the other of an obligation to pay. Support is always reviewable at a future date and the appropriate child support amount will be ordered to be paid.
The obligation to pay cannot be bought out by way of a lump sum.
Whether or not the pregnancy was planned and regardless of whether or not a parent agrees to be a parent, the non-custodial parent must pay support. This is true even if the mother lied or became pregnant intentionally but without consent. Support is payable whether the child is a result of a long-term relationship or a one-night stand.
Child Support Amount
The amount of child support a payer is required to pay is set out in the Guideline Tables. The tables were created using a formula which takes into account the cost of living in each province.
The primary factors in determining the amount of child support are the payer`s gross income and the number of children for which support is paid. For most people the gross income is shown on line 150 of their income Tax Return. The Guideline Tables must be applied and any deviation down must be justified by the payer. Typically, a very good reason must be provided for the Court to allow a deviation.
The recipient`s income is not relevant unless there are extraordinary expenses or if the payer is making a Hardship Application.
In the case of extraordinary expenses, also referred to as Section 7 expenses, the recipient`s income is relevant only because she is required to pay her share of these expenses. Thus, her income is needed so that her proportionate share of the expenses can be calculated.
In the case of a Hardship Application, at its most basic, the payer must show that his proportionate family income (available money per household member) is less than the recipients. The availability of the hardship claim is very restricted and very few people qualify. I have only had a couple of files where I could bring a Hardship Application.
Support During Summer Access
A payer is required to pay support even when the child stays with the payer during the summer extended access, unless a Court Order states otherwise.
Although the child is not with the custodial parent for an extended time, the custodial parents child related expenses are not necessarily reduced. They must still have the same housing, for example.
There are some mitigating circumstances. If the child spends approximately 40% of their time with the non-custodial parent, then support may be reduced.
Use of Child Support
The payer of support cannot control how the recipient uses the support except for the Section 7 portion.
The recipient of support is responsible for housing, clothing and feeding of the child and the law assumes that the more money the recipient has the better able they are to provide for the child. In many cases the payer of support pays a relatively small amount and the recipient must make-up the difference required to maintain the child.
Support is payable even if access has been denied.
Access and support are treated as separate issues.
In every conflict over spousal support both parties inevitably reach a point when they consider whether an agreement is better than going to court. Usually that point is not reached by both sides at the same time otherwise conflicts would probably settle quicker.
Generally, lawyers and judges would say that an agreement is better than taking the risk of going to Court. A Family Court Judge made the analogy that going to court is like getting into the trunk of a random car: you know you are going somewhere but will likely be surprised by the endpoint.
The Attorney General of British Columbia suggests that it is better to “come to a fair agreement on spousal support” rather than go to Court. The Attorney General webpage spells out the disadvantages of going to court as follows:
• Lack of control over the results in court;
• Cost in terms of money, time and stress; and
• Long delays in resolution of conflict.