5 Alternatives to Family Court: ADR Options in BC

Compared to going to court, alternative dispute resolution (ADR) methods give separated parents a more affordable and quicker way to decide how to parent apart.

You can use ADR methods, except arbitration, to help you agree on a parenting plan when you initially separate and on any later changes to the plan or a court order. The goal is a full agreement, but even without one, parents often walk out with fewer issues than they had before.

As an added benefit, many ADR methods are confidential, so you don't have to worry that information you share could be used against you in court. (Parenting coordination and basic negotiation are not confidential.)

Mediation

Mediators help parents talk through issues to find common ground and form a parenting plan. They can't give legal advice or make decisions for parents, and they must be impartial.

The mediator is usually a lawyer or family justice counsellor.

Mediation is free if provided by a family justice counsellor. Others mediators (considered private mediators) charge a fee, usually a few hundred dollars per hour.

A private mediator is recommended if you're dividing property or debt. You can find a private mediator online through Family Mediation Canada and MediateBC.

In Supreme Court, if a parent is served with a Notice to Mediate, they must take part. The parent who serves the notice may end up paying the full cost of the mediation because the notice does not obligate payment. The served parent could be exempt from attending if you've already tried mediation for the same issue. If you both agree to try mediation, a notice is unnecessary.

In Provincial Court, a judge can require mediation as part of the litigation process.

During mediation sessions, the mediator sits down with both parents to discuss what's best for the child (and for each parent if financial matters are an issue). Your lawyer may attend with you. Between sessions, parents gather documents and other information to help in negotiations.

Shuttle mediation, where parents sit in separate rooms and the mediator goes back and forth, is an option if parents prefer to not be in a room together.

The amount of time you'll spend in mediation depends on how many issues you have. You could reach an agreement after a single session, or it may take several.

If you reach an agreement, the mediator may write the terms into minutes of settlement (also called a memorandum of understanding). This is different from an official written agreement. If your mediator is a lawyer, they might also prepare an agreement for you. Otherwise, you must hire a lawyer to do it or write the terms into an agreement yourself. (See Basic negotiation below.)

Collaborative practice

In collaborative practice, a team of professionals helps parents negotiate an agreement.

Each parent has a lawyer. Divorce and co-parenting coaches, counsellors, child psychologists and other professionals might also participate. You can find a collaborative lawyer through the Lawyer Referral Service and other collaborative professionals through the BC Collaborative Roster Society.

To begin, you'll sign a participation agreement stating that you'll keep conversations confidential, cooperate throughout the process, and hire new lawyers and other professionals if you go to court because collaboration ends unsuccessfully.

Parents meet with the collaborative team together for each session. They all try to find ways to resolve each issue. Lawyers advocate for what their client believes is best but also help them adjust their position so that it works for the other parent, too.

It generally takes a few sessions for parents to reach a full agreement. The lawyers put the agreement in writing, then the parents sign it.

Collaborative lawyers usually charge the same hourly fee as they would for litigation — around $300 to $500. You'll also need to pay the other professionals involved. For example, divorce and co-parenting coaches charge around $250 per hour.

Parenting coordination

A parenting coordinator (PC) helps high-conflict parents settle disputes on an ongoing basis. You can find a parenting coordinator through the BC Parenting Coordinators Roster Society.

A PC becomes involved by court order or by agreement between parents. They generally work with parents for years, sometimes during and after a court case, other times only following a case.

Parenting coordinators:

• Make decisions when parents cannot agree
• Encourage parents to prioritize their child's needs
• Help parents improve relationships with their child and one another
• Coach parents to communicate effectively (e.g., by recommending a parenting app for communication)

They cannot change an agreement or court order nor make decisions about dividing property or debt.

Meetings with the PC can happen in person or virtually. Much of the communication between parents and the PC happens via email.

Some PCs speak with the child, while others refer parents to a child specialist. The specialist figures out what the child needs and gives them a space for expression without having to choose between parents.

When parents can't agree on an issue, the PC makes a decision (called a determination). These decisions are binding from the moment the PC signs them.

If you have a court order, you'll file the written determination along with a Request to File a Determination of Parenting Coordinator with the court. The court can set aside the determination if they find it was outside of the PC's authority or it is at odds with the law.

The PC's contract ends after two years unless the agreement or order securing their services says it should end earlier. Their contract can be extended up to two years at a time.

Parents decide how they'll split the parenting coordinator's hourly fees. Some PCs suggest a payment arrangement where a parent pays more if they drag out the disagreement.

Family law arbitration

In family law arbitration, a neutral professional makes a decision for parents based on the evidence presented.

Family law arbitrators can be lawyers, psychologists or social workers. You can find an arbitrator through the ADR Institute of British Columbia.

Arbitrators who are lawyers can decide any family law matter. Those who are psychologists or social workers can only decide child-related issues and simple child support.

There are three types of arbitration:

• Traditional: Parents and their lawyers (if applicable) attend an in-person or online hearing where they present evidence like in a trial.
• Final-offer selection: Each parent proposes their last, best offer for resolving the issues, and the arbitrator chooses one. You may have in-person meetings or just submit your offers. You can provide evidence to back up your offer.
• Documents-only: Parents submit documents (e.g., financial statements, parenting plans) to the arbitrator without appearing in person.

Traditional arbitration is the most costly because it requires more of the arbitrator's and lawyers' time and because you'll pay for the meeting space (if held in person). Final-offer selection arbitration is often the least expensive option as the arbitrator only has to choose between the two offers and usually provides only summary reasons.

You can combine any of the above methods with mediation. In mediation-arbitration (med-arb), parents attend mediation first, then go to arbitration if there are any outstanding issues. The mediator and arbitrator might be the same professional if they are qualified.

If you have an active court case, you can file the arbitration award with the court to get a consent order. Or you may choose to keep it as a private agreement between you and the other parent.

Basic negotiation

If you have an amicable relationship with the other parent, you might be able to reach an agreement without professional help.

You can write a parenting plan together (plus a separation agreement if you're divorcing) or ask a lawyer to draft one for you. This also applies if you have minutes of settlement from mediation.

When drafting an agreement you must:

• Prioritize the child's best interest
• Exchange all information relevant to the terms (e.g., financial documents)
• Follow the child support guidelines if including a support amount

Make three copies of your agreement, and sign and date them all. It's recommended you get independent legal advice before signing to ensure the terms are fair. Someone older than 19 who witnesses the signing must sign and date the agreement as well.

Each parent keeps a copy. If you want the terms to be enforceable, you can file the original agreement with the court or apply for a consent order. The two options are similar, but consent orders require vetting by a judge and are more difficult to change.

Preparing for alternative dispute resolution sessions

Preparation is as important when you decide parenting arrangements through an alternative method as when you decide them in a courtroom.

You'll still be trying to convince someone — the other parent, a parenting coordinator or an arbitrator.

A proposed parenting plan with a parenting time schedule presents your argument persuasively. You may also want to present messages exchanged with the other parent, a log of important interactions with the other parent, your child's expenses, and more.

The Custody X Change online app lets you create all of this in one place.

It has:

• A parenting plan template
• Customizable parenting calendars
• Printable parent-to-parent messaging
• A parenting journal
• An expense tracker
• And beyond

Custody X Change makes sure you're prepared to get what's best for your child through any method of deciding parenting arrangements.