When couples in Alberta divorce or separate with children, there is more than one way to resolve child custody matters apart from heading to court.
Litigation and courtroom trials may make interesting movies but the reality is that most parents in Alberta are able to settle parenting plans outside of court by discussion and negotiation or by using alternative dispute resolution (ADR) methods.
Alternative dispute resolution strategies such as collaboration between lawyers, mediation, and arbitration provide professional guidance without the expense, delays, and stress of trials.
Sometimes, an out-of-court agreement can prevent the need for divorcing parents to attend court at all.
Family mediation in Alberta
Mediation is where a trained professional mediator meets with both parties in a dispute and attempts to facilitate an agreement between them.
This process may be court-ordered or arranged voluntarily and privately between parents in Alberta. The mediation process is similar in both cases but the potential fees are higher for private mediation sessions.
The Court of King’s Bench offers three free mediation programs for parents with incomes under $60,000. These options are Alberta Justice, Resolution Services, & Family Mediation where income must be below $60,000. These mediation programs have the following specific goals:
- Creating a parenting plan
- Reaching a child support agreement
During mediation, the procedure will be as follows:
- The mediator meets one-on-one with both parties
- If any evidence of family violence is identified, the mediator may decline to take the case or introduce safeguards to protect a vulnerable party
- Mediation sessions of 2-3 hours are conducted after an introductory meeting
- Both parties are usually present in the same room and sometimes, a third party is present for support
- The mediator will guide parents as they discuss the disputed topics, with each parent explaining their positions and the mediator trying to facilitate an agreement
- If an agreement is reached, the mediator will write a summary, which a lawyer can draft into an official agreement
Note that parents with hopes of reaching an agreement during mediation must take an online Parenting After Separation course before attending the mediation session(s) if a court order is required for the agreement.
Collaborative Family Law
With collaborative family law, each party appoints a lawyer and the parties try to negotiate a mutually acceptable agreement between each other. This process may require the input of other professionals, such as financial experts and child specialists.
The process should be carefully documented, with the parties signing a contract that states the rules of engagement and an agreement that if the case goes to court, each party must hire new lawyers.
Collaborative law meetings usually last 2-3 hours and, if an agreement is reached, the lawyers will prepare an agreement that both parties must sign.
Fees for collaborative lawyers and professional experts are usually paid by the parents at an agreed hourly rate.
Family Arbitration
Arbitration is another alternative dispute resolution method that can prevent the need for a court trial.
The arbitration process is a more formal process than mediation but less formal than litigation and can take anywhere from a few hours to a few days. Cases are overseen by an arbitrator or private judge (often a retired courtroom judge).
Parents can select the arbitrator and the venue but, unlike mediation, the arbitrator will make a binding decision about the case after the arguments are heard and evidence presented from both sides.
The costs of arbitration are usually split between the disputing couple but costs can be awarded by the arbitrator.
Parenting Coordination
Parenting coordination is usually ordered by the Alberta courts if divorcing couples are having problems settling child custody matters and require professional assistance to resolve a conflict. Meetings can be face-to-face or online and the costs are usually met by both parents.
Parenting coordinators are invested with a variety of powers depending on the court’s instructions in the order. They may simply be introduced to guide parents toward an agreement or be required to make decisions for them as an arbitrator would. Any support provided is usually ongoing—for up to two years if required and longer if the contract is renewed.
Other possible ADR methods in Alberta
Alberta courts have a vested interest in keeping child custody matters out of court as much as possible. It is considered better for families and reduces the caseload burden on the courts.
Accordingly, Calgary and Edmonton also provide the following two alternative dispute resolution options in addition to the ones outlined above.
Family resolution counsel
Family resolution counsel involves lawyers who are provided for couples for free and hired by the court to help parents reach an agreement. This is similar to the collaborative law process but without the hourly fees for parents to pay.
Family resolution counsel meetings may be requested voluntarily or court-ordered, in which case parents must attend. There may be one meeting or multiple sessions.
Parents must meet each of the following requirements to be considered eligible for this free service:
- One or both parents do not have a lawyer
- One or both parents earn less than $60,000 per year
- Few or no other ADR options are suitable or other ADR attempts were unsuccessful
- The case is considered “high conflict”
After family resolution counsel meetings, the lawyer appointed to the case will report back to the court about the agreement or failure to reach a resolution and the outstanding issues.
Judicial dispute resolution
Judicial dispute resolution is another free option in Calgary and Edmonton, whereby a judge attempts to guide parents toward an agreement before the expense and delays of a trial become necessary.
Parents must both select this option if it is available to them and there may be a waiting list, so delays are possible.
The decision of the judge in the judicial dispute resolution process can be binding or nonbinding. In the former case, a court order can be issued, and in the latter case, the judge can inform parents how they would rule, which may encourage a settlement without a trial.
How to be successful with family alternative dispute resolution
No dispute involving children is easy but you can increase your chances of a positive outcome for you and your family by following these guidelines as you enter the dispute resolution process:
- Prepare by collecting all of the necessary evidence and documentation
- Put the needs of your children first in all decisions
- Focus on creating a workable co-parenting arrangement rather than how you can “win”
- Do not be adversarial—remain calm and respectful of your ex-spouse at all times
- Try to be open to new ideas and negotiation
- Ask plenty of questions if you are unsure or need more information
- Be flexible and make any parenting arrangements open to amendments in the future if necessary
There is no pressure to reach a full agreement during alternative dispute resolution. If some but not all matters can be resolved, that is progress at least.
If you can resolve certain aspects of the dispute using these methods, consider getting a court order so that the agreement can be enforced by the court.
Child custody lawyers in Alberta
If you live in the Calgary area and need assistance with child custody, the experienced lawyers at Jennings Family Law can help you. Book a case evaluation to discuss your situation.
