Far too often we are asked by people: “How do I make it stop? I left my partner because we were not suited and now we are trapped in a toxic relationship with no end in sight.” This, unfortunately, is becoming increasingly common as people find themselves involved with a high conflict matter, with an opposing party who just won’t stop fighting, which can leave one party feeling drained and helpless.
Unfortunately, when relationships break down not all parties are ready emotionally to move forward. For some people, it is impossible to break the emotional ties they have with their spouse, and any contact good or bad is desired. In this type of situation, the person who has emotionally left the relationship and simply wants to move on can be left feeling frustrated, exhausted, and defeated, not to mention financially under siege.
Some options are available to people when they experience a breakdown of their relationship. However, not one size fits all and it is essential when looking for a lawyer that you understand what their approach is. Some lawyers will state they will only assist with mediation and amicable resolutions. If you are in a high conflict situation, this is not necessarily beneficial.
Mediation- If you are dealing with a party who has no intention of resolving matters, or who have been physically or emotionally abusive to you during your relationship, mediation is often not helpful unless you have a skilled mediator who is well-versed in dealing with power differentials. However, even with an experienced mediator, mediation requires agreement. If one person has no intention of agreeing to anything reasonable this process will not work. Mediation will only work when both parties come to the table with good intentions. A party who is looking to delay the process and maintain the links with the other person, or not disclose assets or income is not going to mediate in good faith leading to an ineffective resolution, and a waste of both parties’ money.
It is important to note mediators are not regulated, and there are many unskilled and untrained persons holding themselves out as mediators. Check what experience your mediator has, the best mediators for family law matters are those who have a wealth of experience and actual knowledge of the law. It is not uncommon that parties will come to an agreement with an untrained mediator only to later learn that the agreement is not something the court will uphold – this only escalates conflict, increases costs, and is not helpful.
However, hearing from a retired Justice that a person’s position is not sustainable can have a sobering effect on a party and can lead to resolution. A number of retired Justices are providing private mediation in the city.
Arbitration– Arbitrators are individuals who are hired privately by both parties to resolve their matter – kind of like having a private judge. If a party is not willing to resolve issues, then an arbitrator has the right to determine the process and make decisions that are binding upon the parties.
However, the arbitration process can be easily misused to financially drain the matrimonial funds with endless applications and one party constantly asking to revisit issues. As awards are not court orders and need to be converted to an order before it can be enforced, or a party can be held in contempt, this can be another delaying tactic used by the unscrupulous and emotionally driven party looking for any reason to maintain contact. Arbitrators have to be experienced and effective in dealing with this type of delay tactic. For this reason, it is important to carefully choose the arbitrator in advance to ensure they will be effective in this situation. Alternatively, as arbitrators require payment in advance of an application, if one party has access to all the funds and another party has limited income this is another way an unscrupulous party can delay an application: if you can’t pay the fees you can’t proceed but, unless your arbitration specifically permits you to do so you are prevented from taking the matter to court, as you have agreed to arbitrate the matter instead.
Arbitration can be beneficial. It is private and dates can be available much more quickly. There are some extremely competent arbitrators who will assist in Calgary including a number of retired Justices who offer private arbitration services.
Make sure you get legal advice before signing an arbitration agreement and be sure that you have a way to ensure a hearing can proceed if the other party refuses to cooperate or pay their portion of the funds, or confirm that the arbitration agreement allows you to proceed to court if this occurs. Ensure you understand the rights you have to appeal any arbitration award, if any, and what the process will be before entering arbitration.
Confirm what powers your arbitrator will have- can they decide property issues or just parenting? Have they got the necessary skills to arbitrate an issue if required, paying attention to the principals of natural justice? Will they be available to deal with your file or have they got extended periods of leave away from the office booked? If they do, what will happen to your matter- do you have the right to go to court or can they decide who will arbitrate in their absence? These are all relevant questions that you need to consider when signing an arbitration agreement.
Trial- If your matter involves issues of safety, credibility, or a person continuously violates court orders it may be that the only way to resolve matters is a trial. Unfortunately, this is expensive and due to the shortages of court resources delays of up to three years can be experienced while waiting for trial dates. This can lead to endless morning chambers applications and domestic special hearings as parties try to resolve issues on an interim basis. In this circumstance, a litigation plan is required to ensure your matter progresses as swiftly as the system will allow to a final resolution.
We often hear that one party is continually flouting interim court orders and their behaviour goes unchecked. While this may be the case, in a trial the court will listen to all relevant facts about how a party has conducted themselves, and if one parent has consistently flouted court orders addressing parenting, this can have an impact on their parenting long term. If a party has failed to provide disclosure or come to the table with clean hands, the courts have ruled in favour of the opposing party ensuring that this behaviour does not go unchecked.
At Mincher Koeman we understand all these issues and we provide advice tailored to the needs of a particular case explaining how to proceed to move your matter forward as efficiently as possible, while trying to ensure resolution is reached as early as possible but moving towards a process which will provide a final decision if this is not possible.