Separating with civility

Instead of battling it out Kramer v. Kramer style, many couples are divorcing amicably outside the courtroom

TRALEE PEARCE

From Thursday's Globe and Mail

When Toronto couple Miriam and Andrew Grenville decided to end their 20-year marriage, neither wanted a bloodbath. But they knew that signing up with divorce lawyers might send them on that trajectory.

After some research, they found a new breed of divorce, one that aims to eschew Kramer vs. Kramer-style jousting in favour of civilized negotiations - negotiations that seek to keep divorce out of the courts.

The Grenvilles retained legal counsel, but instead of seeking out hardened divorce lawyers, they hired ones who work in a growing field called collaborative practice. While traditional divorce involves a back and forth between opposing counsel for the two spouses, the collaborative approach centres on getting all four parties - the couple plus lawyers - at the same table.

The goal of the meetings is to find solutions to breakup issues - custody, financial support and the division of assets - without acrimony and without going to court.

"Couples I've seen get divorced - it's been a living hell for everyone," says Mr. Grenville, 43.

While the divorce rate hovers at about 40 per cent, Canadians are clearly looking for a gentler, less confrontational approach when they do choose to end their marriages. In Ontario alone, there are now more than 550 lawyers who offer the collaborative approach, up from 85 in 2002.

Now, some lawyers want to see the federal Divorce Act amended to mention collaborative practice as an alternative dispute-resolution option.

Delegates at a conference on collaborative practice this week in Toronto will be asked to sign a petition urging federal Justice Minister Rob Nicholson to add collaborative practice to the Divorce Act's section 9. Currently, the section stipulates that it is a lawyer's duty to tell a client about the availability of mediation as a second option to the traditional divorce law.

Mediation is different from collaborative practice. In mediation, a couple will visit a mediator, either separately or together, to hammer out custody or financial agreements. The agreements then go to each of the spouses' lawyers for review. If one of the lawyers finds something amiss, the process is repeated.

Mediation is generally considered a good choice for low-conflict cases, and divorce court is the choice for high-conflict disputes. Collaborative lawyers say their option lies between the two - and should be offered as a third approach in the act.

Since each province must interpret the Divorce Act in its own courts, the petition also calls on Mr. Nicholson to work with Michael Bryant, the attorney general of Ontario, to facilitate changes to provincial law.

In Medicine Hat, Alta., collaborative practice has been mandated as a first response for couples who are separating.

In the United States, California, Texas and North Carolina have added collaborative practice to their state family law statutes.

In Australia, couples must certify that they have tried either mediation or collaborative practice and failed before they can embark on court action.

Indeed, for couples who choose it, the biggest draw of this divorce style is the promise of staying outside the adversarial court system.

"When you say 'no court' to couples divorcing, their eyes light up," says Toronto collaborative lawyer Lorisa Stein.

It doesn't hurt that the process can be cheaper and faster, too. No court documents need to be prepared. When outside experts such as accountants or parenting professionals get involved, both parties agree to defer to one professional's expertise instead of each side hiring its own posse and arguing over the results.

The process can even work for those couples who are less amicable than the Grenvilles.

Collaborative lawyer Sharon Cohen, who acted on behalf of Ms. Grenville, 42, has seen couples coming out of everything from infidelity to mental illness and abuse choosing the approach. "They have all of the same issues they're slugging out," she says.

The process can give couples more freedom to broker creative solutions, practitioners say. If a home is owned jointly, for instance, the traditional model might dictate selling the home and dividing the assets, while collaborative lawyers might set up a plan in which one spouse paid rent for a few years before buying out the other or selling the house together.

"The clients control the agenda," says family lawyer Jeff Rechtshaffen. "And the ways in which issues are resolved don't necessarily come from law."

Another example: A father earns much more than the mother. Child support guidelines suggest if the father has the child 40 per cent or more of the time, he may not need to pay the full amount of child support. "That may cause the woman to be anxious," says Ms. Cohen.

Instead, they can create a blended agreement in which Dad still pays decent child support but also has the kids more than 40 per cent of the time.

Such deals can mean less stress on the kids - one of the tenets of collaborative practice.

"The fact is, you still have to sit at your kid's Christmas concert. You have to sit there at your mother-in-law's funeral. You have to go to weddings and christenings," says Ms. Grenville, who along with her ex and their lawyers divided assets and the family home, and agreed on shared custody.

While she admits the pair did get "snippy" with each other on occasion during their sessions, she says the lawyers kept reminding them of the big picture.

For Shelley Geary, 36, it meant giving up her preconceptions. Before starting the collaborative process with her husband of seven years, the Toronto mother of two wanted her kids for major holidays two out of three years.

During a marathon eight-hour session with her husband and their two lawyers, she agreed to alternate years.

"We're both good parents," she says. "My lawyer helped me take a step back and remember that."

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