In recent years, there has been an increase in the number of companies offering divorce services as a “cheap” alternative to using divorce lawyers.  Most often these companies are operated and staffed by individuals who are not lawyers, and have minimal training in the law.  These companies commonly advertise to parties who are looking to avoid conflict, and avoid the fees associated with lawyers.  Often they offer mediation services to parties who are prepared to work together to resolve issues such as spousal support, child support, and matrimonial property.  Ultimately, these companies typically aim to prepare divorce and property agreements for divorcing couples, and file the necessary documents to complete the divorce.

Most Family Law Lawyers are familiar with these companies and their services, as it is not uncommon for parties who have used these companies to have doubts about the agreements they reached, or to realize that the agreements might not actually be enforceable.

These are the issues that frequently arise for couples who use the services of these companies.  As the individuals who operate these companies are not trained lawyers, they are unable to provide complete information to the parties using their services as to what their legal rights, entitlements, and obligations might actually be.  And because both parties are jointly hiring a single company or individual to assist with these agreements, that person is not their to advocate for the best interests or rights of either party, but merely to forge an agreement.

The difficulty is that without being provided proper and full information in respect of what either party might be entitled to, or obligated to provide to the other, parties are often entering into agreements that do not actually reflect what they should be entitled to under the law.  Further, under the Matrimonial Property Act, in Alberta, parties entering into a property agreement are required to have a specific document, called a Section 38 Acknowledgement, signed by a lawyer.  The Courts have been very clear that without such a document signed by a lawyer, the agreement between the parties is not enforceable.

It is common for parties to not be informed of this by the individual they have retained to help them with their divorce, leaving them with an unenforceable agreement.  This frequently results in one party eventually retaining a lawyer when they find they cannot enforce the agreement against their spouse.  Alternatively, some of these services will draft the agreement and then refer each party to a lawyer for the signing of the agreement.  In these cases, it is not uncommon that the agreement is poorly drafted or does not reflect the actual rights and interests or one or both of the parties.  This usually results in renegotiation and conflict between the parties, and at the very least, redrafting of the Agreement.

Additionally, a recent case from the Alberta Court of Queen’s Bench highlights that even the Courts are prepared to reject consent applications for divorce on the basis that they do not appear to properly protect or represent the interests of the parties.  In Orga .v Smith, Justice Eamon rejected a desk divorce application submitted on behalf of two parties by a “third party service provider” because it was rife with errors, failed to include basic legal requirements such as the common warning to parties waiving spousal support, and was generally not conclusive as to whether the parties to the agreement made meaningful choices in the resolution.

The Court held that it had an obligation to self-represented individuals to protect them, and ensure that they were not entering into an agreement in the absence of full understanding and information as to what they were agreeing to.

Ultimately the Court held that it had no option but to reject the Divorce Application and strenuously recommended that the parties each obtain independent legal advice.

While a divorce can be expensive, it doesn’t need to.  Divorce does not need to be high conflict, but it does require both parties to know their rights and be fully informed of what they are agreeing to.  With a lawyer, you will have someone working for you, advocating for your rights, and making sure you are informed of what you are entitled to, what obligations you might have, and what you might be choosing to give up in any negotiation or agreement.  There is no substitute for the advice of an experienced lawyer.

The lawyers at Mincher Koeman have the experience to help you with your divorce; contact Mincher Koeman LLP at 403 910 3000 or reception@mincherkoeman.com.

 

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