Duhaime's Law Dictionary


Collaborative Law Participation Agreement Definition:

The contract which creates and triggers the formal engagement in the collaborative law process, designed to encourage the settlement of a family law dispute outside of litigation.

Related Terms: Collaborative Law

Also sometimes referred to as a collaborative participation agreement or a collaborative law contract and should not be confused with the agreement which is the ultimate goal of the collaborative law process, the latter more properly described as a separation agreement, a marriage agreement or a post-nuptial agreement.

 

In one Canadian case in which one of the collaborative law participants terminated the collaborative process and sought, instead, relief in court, the essential terms of a collaborative law participation agreement was published:

"The primary goal of the Collaborative Law Process is to settle the outstanding issues in a non-adversarial manner. The Parties aim to minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation to themselves and their family. The Parties have retained Collaborative lawyers to assist them in reaching this goal.

"Unless otherwise agreed, prior to reaching final agreement on all issues, no writ and statement of claim will be filed or served, nor will any other motion or document be prepared or filed which would initiate court intervention.

"If a Party decides to withdraw from the Collaborative Law Process, prompt written notice shall be given to the other [P]arty through his or her lawyer. Upon termination of the Collaborative Law Process by a Party or a lawyer, there will be a thirty (30) day waiting period (unless there is an emergency) before any court hearing, to permit the parties to retain new lawyers and make an orderly transition. All temporary agreements will remain in full force and effect during this period. The intent of this provision is to avoid surprise and prejudice to the rights of the other Party. It is therefore mutually agreed that either Party may bring this provision to the attention of the Court to request a postponement of a hearing.

"All communications exchanged within the Collaborative Law Process will be confidential and without prejudice. If subsequent litigation occurs, the Parties mutually agree:

That neither Party will introduce as evidence in Court information disclosed during the Collaborative Law Process for the purpose of reaching a settlement, except documents otherwise compellable by law including any sworn statements as to financial status made by the parties;

That neither Party will introduce as evidence in Court information disclosed during the Collaborative Law Process with respect to either Parties' [sic] behaviour or legal position with respect to settlement;

That neither Party will ask or subpoena either lawyer or any of the Collaborative Professionals to Court to testify in any court proceedings, nor bring on an application to discover either lawyer or any of the Collaborative Professionals, with regard to matters disclosed during the Collaborative Law Process; (and)

That neither Party will require the production at any Court proceedings of any notes, records, or documents in the lawyer’s possession or in the possession of one of the Collaborative Professionals;

... and the parties agree that these Guidelines with respect to confidentiality apply to any subsequent litigation, arbitration, or other process for dispute resolution.

"In the event that the Parties require a temporary agreement during the Collaborative Law Process, the agreement will be put in writing and signed by the Parties and their lawyers. If either Party withdraws from the Collaborative Law Process, the written agreement is enforceable and may be presented to the [C]ourt as a basis for an Order, which the Court may make retroactive to the date of the written agreement. Similarly, once a final agreement is signed, if a Party should refuse to honour it, the final agreement may be presented to the Court in any subsequent action."1

One of the difficulties with the collaborative process is that disclosure relies on trust, there is no recourse to contempt of court or other sanctions available where, in litigation, a party intentionally omits or is untruthful about an asset otherwise subject to consideration as matrimonial property. Setting aside a post-nuptial contract for non-disclosure requires a court application and is subject to the law of contracts.2

REFERENCES:

  • Banerjee v. Bisset, 2009 BCSC 1808 [NOTE 1]
  • NOTE 2: for a case where the law was stated in regards to the setting aside of a post-nuptial contract achieved as a result of a collaborative law process, see ¶57 of Ward v. Ward, 2010 ONSC 1007 (Justice Matheson, Ontario Superior Court of Justice): "First, the party seeking to set aside the agreement must demonstrate that the other party failed to discharge its duty to disclose significant assets. The failure to disclose significant assets includes the making of a material misrepresentation about the true value of assets, and the failure to disclose changes in income.... If a court finds that a party has failed to disclose a significant asset, the court must determine, in light of the facts of each case, whether it should exercise its discretion to rescind the domestic contract. The burden of proof lies on the party seeking to set aside the contract to persuade the court to exercise its discretion in its favour. The court will take into account a variety of factors in exercising its discretion."

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