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Friday, June 24, 2022 7 Brooklin Town Crier Support Your Local Business NO BETTER TIME THAN NOW TO SUPPORT OUR LOCAL ECONOMY TurnerMoore LLP Chartered Professional Accountants Licensed Public Accountants Alan Hogan CPA, CGA 62 Winchester Road E., Brooklin Providing a full range of professional accounting & taxation services. 905.655.8556 • www.turnermoore.com Family & General Dentistry Cosmetic Dentistry Oral Surgery Periodontics • Orthodontics www.brooklindentalcare.com 5969 BALDWIN ST. S., BROOKLIN 905.655.7117 www.rhaverylandscaping.com DREAM / CREATE / ENJOYWe Make Your Dreams Come Tru e! COMMERCIAL SNOW REMOVAL Rebecca Kelsey Sales Representative Cell: 647-621-SOLD (7653) Office: 905-419-8833 rebecca@movingwithrebecca.com movingwithrebecca.com Offering Customized CSA boxes year round! • Flexible Payment Plans • Reschedule Options • Recipes & Tips 905-986-9612 • info@lunargardens.ca • lunargardens.ca Serving Durham Region, Peterborough and City of Kawartha Lakes Lunar Rhythm Gardens Divorce and Separation - The Modern Approach "The wheels of justice turn slowly but grind exceedingly fine" The Problem - Delays Resolving family law cases through the court system has always been a long and arduous process. However, the advent of the COVID-19 pandemic in early 2020 has resulted in even further backlogs and delays in the court process, including but not limited to the following troubling developments: Pre-pandemic, urgent motions could ordinarily be brought by obtaining a date from the court and giving appropriate notice to the other party. However, currently urgent motions can only be brought if the aggrieved party first seeks and obtains leave of the court by way of a preliminary, procedural motion. Pre-pandemic, regular motions (e.g., for temporary support, the sale of a property, or for financial disclosure) could be brought any week, on proper notice to the other party. Available motion dates are now many months away. Pre-pandemic, it ordinarily took about 2 to 3 months after starting your court action to get a date to appear in front of a judge at a Case Conference. Post- pandemic parties now have to wait up to 6 months or more to get their first date for a judicial conference. The Solution - ADR Our family lawyers at Hills Nolan have always steered our clients towards the various Alternative Dispute Resolution (ADR) processes available to them. ADR can be more cost-effective than court action in the long term and produce more creative and mutually satisfactory results for the parties. As the courts experienced unusual delays brought on by the pandemic, our lawyers used ADR in the management of our clients' family law matters more than ever before. Some of the main forms of ADR for family law matters are described below: Negotiations through lawyers - This is a very informal process. There is no way of enforcing deadlines or timelines and there is no guarantee that negotiations will be successful. The aim here is to sign off on a written agreement if the parties are able to reach a consensus. Parties can walk away from negotiations at any time. Mediation - This process allows for negotiation and settlement discussions though a qualified mediator who is usually a social worker, psychologist, or sometimes a lawyer. The mediator must be an impartial person who is able to craft creative proposals to give the parties a platform for settlement. However, the mediator cannot offer legal advice. You can walk away from the mediation process at any time without any consequences save for the payment of the mediator's fee. If you come to an agreement in mediation it is not legally enforceable unless a lawyer reviews it with you, gives you independent legal advice and turns it into a valid agreement. Arbitration - The Arbitrator is given the power to determine family law cases pursuant to the Arbitration Act. The parties participate in Arbitration voluntarily by signing the Arbitrator's retainer agreement after receiving legal advice. The Arbitrator may try to assist the parties to arrive at a consensus at the start of the process but if there is no consensus the issues in dispute will be arbitrated. Once the Arbitration process starts you cannot simply walk away from the table. If you do, the Arbitrator will make decisions without your participation. You must accept the Arbitrator's decision, subject to the right of appeal if his or her decision is not in accordance with the facts and/or law. The Arbitrator cannot grant you a divorce or an annulment but he or she can make decisions (as a judge would) on any other corollary issue in a family law case (i.e. parenting time, decision making, property division and support). Collaborative Family Law - This is a more sophisticated form of negotiation which allows the parties, their lawyers and third party specialists (i.e. family professionals and/or financial professionals) to work together as a team to reach a mutually acceptable resolution of the issues stemming from the breakdown of a marriage or common law relationship. Resolutions are incorporated into a Separation Agreement. If no resolution is reached the parties have to retain new lawyers; this means that your lawyers have a vested interest in ensuring that the collaborative process is successful. For most cases, Collaborative Family Law avoids the adversarial, costly and hostile nature of litigating in court. Any one of the above means of ADR is preferable to court action because: There is a greater probability of your case being resolved more quickly than court cases; You have more control over what happens in your case in that you and your spouse get the opportunity to craft your own settlement terms. In court, a single judge gets to decide matters relating to your children, home and finances; You usually have a better understanding of your case; You usually have better communication with your spouse as you go through this difficult transition; It can be more affordable (in the long term) than a court case; and It may be less emotionally traumatic and stressful than going to court. The Court's Take On March 1, 2021 the Divorce Act was amended to make it mandatory for parties to try to settle family law issues through ADR before commencing a court application. The only exception is in cases where it would be inappropriate to do so (e.g. where there is family violence or power imbalance between you and your spouse and/or safety concerns). Now that it appears that the pandemic is receding, the courts have also recognized that they have to take action to address the inherent delays in the court's process. In this regard, the court has recently implemented the following changes: • The introduction of a pilot program called the "Binding Judicial Dispute Resolution Program" for family law cases in some jurisdictions. This program will provide a forum for judges to meet with the parties to and their lawyers (if any) to explore possibilities for settlement. This is a means of streamlining less complex family law cases with the aim of early disposition; In some circumstances parties now have the option of eliminating the Case Conference which was formerly the first mandatory step in a family law case. If the Case Conference is skipped the parties can proceed directly to the Settlement Conference which is the second mandatory step in a family law proceeding; Virtual hearings will be a permanent part of the court's work for the foreseeable future; and More Case Conferences are now to be heard by Dispute Resolution Officers (i.e. senior lawyers) to help keep judges' schedules manageable. At Hills Nolan our lawyers are collaboratively trained, results-oriented and settlement focused. We use all the above ADR processes to be effective and efficient in coming up with creative solutions for the benefit our family law clients. We did this before and during the pandemic and we will continue to do so. ADR with particular emphasis on Med/Arb and Collaborative Family Law have been integral aspects of our practice over the past 30 years. We embrace the opportunity to provide our clients with stellar representation and assist them to find mutually beneficial resolutions for even the most complex family law matters.