What Is the Difference Between Mediation and Collaborative Divorce?

Many divorcing couples turn to alternative dispute resolution (ADR) methods rather than going to court. Popular forms of ADR include mediation and collaborative divorce. Both tend to be cheaper, faster, less adversarial, more flexible, and more private than a court divorce. While mediation and collaborative divorce are similar, there are some key differences. Our Edmonton family lawyers may be able to help you decide if mediation or collaborative divorce is best for your situation.

Mediation

Mediation involves bringing in a specially trained neutral third party, often a lawyer, to help divorcing couples resolve their issues outside of court. A family law mediator strives to facilitate an agreement between opposing parties on the primary issues of separation, which will later be submitted in court.  

A mediator guides couples through such common issues as child support, custody, parenting time, spousal support, and division of assets and debts. While mediators may not provide legal advice, they can help couples understand relevant legal consequences. 

Mediation requires both parties to be willing participants. As the process is voluntary, it may also be terminated at any time. For mediation to be most effective, it is beneficial to have a base level of trust and good faith between the divorcing parties, as they will each be relied upon to provide an honest account of their circumstances, including sharing financial statements. 

Collaborative Divorce

Collaborative divorce is similar to mediation because it is a voluntary negotiation process designed to reach a consensus outside the Court system. However, in a collaborative divorce, rather than facilitation by a neutral third party, couples and their respective lawyers meet as a group to negotiate solutions. Additional experts, such as financial advisors, child psychologists, or coaches, are often included in the process. 

At the outset of collaborative divorce proceedings, each party signs an agreement stating they will do their best to reach an equitable settlement and will not go to court. If an agreement cannot be reached, or if one of the parties breaks the agreement and proceeds to court, each party must retain new counsel. 

Mediation vs Collaborative Divorce 

Mediation and collaborative divorce provide similar benefits to participants. As mentioned, both tend to be faster and less expensive than going to court. Other benefits include:

• As both processes are voluntary, they can be terminated at any time without repercussion other than the time and expense of starting over.  
• The informal setting, compared to court, is often less stressful and allows for more flexibility in finding solutions that work for each family’s unique circumstances. 
• A focus on consensus-building rather than on “winners” and “losers” minimizes conflict in family relationships and is good practice for future problem-solving, especially where children are involved. 
• Both processes are confidential, encouraging both parties to be more open and honest than they might be in a court setting. 

Mediation can be more flexible than collaborative divorce as there are typically fewer participants to accommodate. This can also make the process more efficient and less expensive – especially with fewer professionals to compensate. Collaborative divorce lawyers often belong to a collective group with rules and protocols that can limit what might be possible. 

Collaborative divorce may be more suited to those who prefer the individual guidance of a lawyer looking out for their best interests throughout the negotiation process. This can be especially helpful when a pre-existing power imbalance in a relationship undermines the confidence of one party to advocate for themselves, or if there are complex issues that require expert guidance. 

The primary drawback of collaborative divorce is that if it doesn’t work, you must start over with new counsel, causing additional expenses and delays. Similarly, if your mediator is not a litigator and the process fails, you must do the same. 

Contact Our Edmonton Family Lawyers Today for a Consultation

If you are considering a separation or divorce or need legal assistance on a family law matter, our Edmonton family lawyers would be happy to address your questions and help you understand your options. Contact us today to schedule a consultation and see how our family lawyers may be able to help you.

* Please note that the information in this article is not intended as legal advice but rather as a general overview of family law. If you are seeking legal advice, please consult with a lawyer.

Can a Married Person Still Be an Adult Interdependent Partner?

Under Alberta’s Adult Interdependent Relations Act, an adult interdependent relationship (formerly known as a common law relationship) exists when two unmarried people live together and share in each other’s lives as a married couple would for at least three uninterrupted years. Couples can also be considered adult interdependent partners (AIP) if they have a child or have entered into a partner agreement. Upon separation, AIPs have the same rights and obligations as married spouses.

But what happens if one of the partners is still legally married to someone else? A recent Court of Queen’s Bench of Alberta decision, Mitchell v. Reykdal, 2021, explored whether a married person could be an AIP to someone other than their spouse. 

Whether you are seeking legal assistance with a divorce or separation, or would like to discuss your questions or concerns, contact our Edmonton family lawyers today to schedule a consultation.

An Overview of Mitchell v. Reykdal

David Reykdal (“David”) led a double life, deceiving two families for almost two decades. One family comprised his wife, Diane, and their three sons. Throughout his marriage to Diane, he also conducted a 17-year relationship with Gwen, who had a daughter from a previous relationship. David could live this double life due to his job as an oil and gas industry worker, which regularly took him away from home for weeks at a time.

When David and Gwen eventually separated, she filed a Statement of Claim seeking partner support and other damages. After consulting with counsel, it was revealed that David was still married and had lied to her about divorcing Diane. Gwen knew that he had gone away to see his sons but did not know that he was returning to the family home.

Despite the deceitful nature, the Court chose not to focus on the morality of the case but rather on whether Gwen could be considered an AIP and, if so, to what level of support she was entitled. It ultimately came down to the Court’s definition of “living with” in section 5 of the Act, which states, “A married person cannot become an adult interdependent partner while living with their spouse.”

At trial, David attempted to characterize Gwen as his mistress. However, the Court found David to be in an interdependent relationship with Gwen, despite his ongoing marriage to Diane, based on factors that included:

• They were engaged for years and lived together in multiple homes of increasing value in which they shared a bedroom and were routinely intimate. 
• They shared a vacation home, which they frequently visited as a couple and with friends. 
• David was home most evenings with Gwen and participated in her extended family events, including acting as a pallbearer at her father’s funeral. He was referred to as Dad and Grandfather by Gwen’s daughter and grandchildren, with whom he cultivated close personal relationships over many years.
• They shared a joint bank account and other business and financial partnerships.

Upon the finding, the Court determined that Gwen was entitled to AIP support. 

Contact Our Edmonton Family Lawyers Today for a Consultation

If you are considering separation or divorce, our Edmonton family lawyers may be able to help you understand your options. Contact us today for more information and to schedule a consultation.

* Please note that the information in this article is not intended as legal advice but rather as a general overview of family law. If you are seeking legal advice, please consult with a lawyer.

What is a Narcissistic Ex?

When relationships break down, it is common for partners to view their exes through a lens of pain, anger, and disappointment. Someone that once was a trusted partner might suddenly appear selfish, uncaring, and even malicious. Separation and divorce often trigger fears and insecurities, eliciting bad behaviour from both partners. As a result, partners undergoing a breakup or divorce often find themselves locked in contentious struggles with one another, especially in the early stages of separation.

But sometimes, an ex’s bad behaviour is far more extreme than what would typically be considered reasonable. Their selfish personality and lack of concern for others may have even been a factor that led to the breakup. Dealing with narcissists can be frightening, especially in the context of a divorce or separation. Their exaggerated sense of self-importance and inability to consider the perspective of others can alienate and even traumatize a narcissist’s former spouse. Psychologists measure narcissism on a spectrum. While many individual people have self-centred personality traits, their tendencies may not constitute a narcissistic personality disorder.

Narcissistic Personality Disorder

Narcissistic personality disorders are rare, affecting only an estimated 1% of the population. Pathological narcissism is commonly characterized by the following traits:

• An excessive need for attention and admiration
• An inflated sense of self-importance and entitlement
• An exaggeration of achievements and talents 
• An expectation to be recognized as superior
• A lack of empathy for others (e.g., looking down on those they deem inferior)
• A preoccupation with fantasies of success, power, and perfection
• An openness to manipulating others to get what they want

A person with a narcissistic personality disorder is typically very sensitive to perceived slights or criticism. They often:

• Have difficulty regulating negative emotions
• React with rage or contempt if they feel they are treated without the proper respect
• Tend to belittle others to make themselves seem superior
• Secretly struggle with shame and insecurity

Narcissists tend to see things as binary (for example, as either good or bad) without room for nuance.  They often see themselves as victims to justify their own bad behaviour. Narcissists can be manipulative and might use threats to get their way. They may employ gaslighting, causing the people closest to them to question their own beliefs or perceptions.

What Can You Do if Your Ex is a Narcissist

Navigating a breakup with a narcissist can be very challenging, especially if financial complexities or children are involved. Arguing can feel futile, as a narcissist will often twist things to prove they are right, even if their claims are not grounded in fact. 

If you suspect your ex is a narcissist, the best course of action is to establish healthy boundaries and distance yourself emotionally. Seeking the support of a counselor with expertise in narcissistic relationships may help you move on emotionally. In addition, understanding your legal rights may help you take the necessary steps to protect yourself and your family from a narcissistic ex.

Contact Verhaeghe Family Lawyers Today

If you are considering separation or divorce, our Edmonton family lawyers may be able to help you understand your options. Contact us today for more information and to schedule a consultation.

* Please note that the information in this article is not intended as legal advice but rather as a general overview of family law. If you are seeking legal advice, please consult with a lawyer.

Alberta Court of Appeal Reconsiders Smolis-Hunt Imputation of Income Test

In a recent decision in the Alberta Court of Appeal (ABCA), The Honourable Justice Pentelechuk drew on case law from jurisdictions across Canada to reconsider the court’s approach to matters of income imputation in child support law. 

This decision comes on the heels of years of debate regarding the interpretation of Federal Child Support Guidelines in Alberta, and is welcomed by many of the province’s practitioners of family law.

Child Support in Alberta

In Alberta, child support regulations are geared to provide the children of separating or divorcing couples with a fair standard of living. Both parents are financially responsible for their children, whatever the custody arrangements. In circumstances where one parent has full custody of the children, the caregiving parent is considered to be providing child support in the form of day-to-day expenses. The other parent, in turn, owes a monthly payment.

The amount the payor parent owes in child support is calculated based on their declared income in Line 150 on their tax return. Ideally, this is an accurate representation of the parent’s financial circumstances. However, in some cases, the accuracy of that amount may come into question.

If a court determines that “a spouse is intentionally under-employed or unemployed,” as stipulated under section 19(1) of the Federal Child Support Guidelines, then it may attribute, or “impute,” a certain amount of income to the payor parent. The imputed amount is based on the parent’s earning capacity, rather than their declared income. This parent may then be required to pay child support based on the imputed income amount.

The interpretation of “intentionally under-employed or unemployed” varies across Canadian jurisdictions. Most provinces interpret this guideline under a reasonableness standard, which allows for flexibility in determining whether or not to impute income.

In Alberta, the interpretation has been more stringent, requiring evidence that the payor parent deliberately chose to become or remain “under-employed or unemployed” for the purpose of avoiding child support payments. The discrepancy between the provinces’ interpretations of this guideline have been the source of debate.

The Smolis-Hunt Imputation of Income Test

The landmark case on imputation of income in Alberta was Smolis-Hunt in 2001. In this case, the payor parent was the father, who, following the divorce, continued working in an unsuccessful legal practice that yielded no substantial prospect of improvement. The trial judge imputed income to him, in accordance with the above-mentioned guideline 19(1)(a).

The payor-father appealed this decision, requesting a recalculation of the amount he owed. His appeal was granted on the grounds that he did not deliberately seek to evade child support by choosing to continue with a line of work less lucrative than his earning potential. With this, Alberta courts established an interpretation that required proof of “deliberate evasion” in order to provide grounds to impute income.

The Problem With Deliberate Evasion

Several problems have been highlighted with the Smolis-Hunt test. The recipient parent bears the burden of proof that the payor parent is deliberately choosing to minimize their income in order to avoid child support. Intent is a subjective notion, and can be challenging to prove. A payor parent may take on a less lucrative career in search of self-fulfillment, for instance. Their financial decisions may not be directly tied to their children - yet the children may nonetheless feel the impacts of those decisions.

Peters v Atchooay: A Test of Reasonableness

In 2022, another case involving a payor-father applying to retroactively reduce his imputed child support obligations came before the Alberta Court of Appeal. Drawing on other provinces’ interpretations of section 19(1) of the Federal Child Support Guidelines, The Honourable Justice Pentelechuk decided in favour of the mother’s appeal that the imputed income stand. 

This decision was made based on a test of reasonableness, meaning that instead of requiring evidence of the payor’s deliberate evasion of child support, the court considered whether his employment choices were made within a reasonable framework.

A parent is not required to maximize their income at the expense of self-actualization. However, as Hon. Justice Pentelechuk underlined in the case summary for Peters v Atchooay, “[a] parent’s personal goals and life-style choices do not take priority over their obligation to financially support their children.” There is leeway within a payor-parent’s responsibilities, and the court may deem a range of employment options as reasonable when the question of imputation arises. Ultimately, it is the well-being of the child that takes primacy.

Contact Verhaeghe Family Lawyers Today

If you have questions or require support regarding a child support matter, reach out to our Alberta family lawyers today to discuss the specifics of your case. Contact us online or by phone to schedule a consultation and see how we may be of service to you.

* Please note, the information in this article does not constitute legal advice. It is intended as a general overview of an area of family law. For legal advice, please consult with a lawyer.