The Duties Through Proceedings: Who Has What Duties?

When working through complex cases, we tend to forget that the courts, the lawyers, and the parties each have fundamental duties. These duties carry legal weight and have consequences. If you are going through a divorce and need in-depth advice on your duties, contact one of our team members.

The duties are set out in section 7 of the Divorce Act, which outlines duties for the courts, the parties, and the parties’ legal advisers.

Stokes Law LLP brings expert advice that goes above and beyond the duties that are required.

Courts

The courts have the fewest duties. Under the Divorce Act, a court must consider other relevant proceedings and orders, such as civil protection orders and criminal charges, when making an order in favour of a party.

Essentially, the court makes sure its decision does not conflict with another proceeding. For example, a civil protection order may alter a judge’s decision.

Legal Advisers

Legal advisers have many duties outside the Divorce Act. A lawyer is specifically governed by the law society of the province where they practice. In Alberta, lawyers must provide competent, honest, and loyal legal advice free from conflicts of interest. This means your lawyer has a duty to give you honest advice that fully informs you of your situation.

The Divorce Act adds to these duties. Legal advisers must draw the spouse’s attention to the possibility of reconciliation and discuss it with them. They must also inform and discuss family dispute resolution options with their clients, inform clients of their duties under the Act, and inform them of services that could help.

The Divorce Act also directs legal advisers to make an honest attempt to resolve the family matter outside of trial. As legal practitioners, we understand that some high-conflict situations cannot be resolved without the structure and protection of the legal system. However, court proceedings are expensive, and many programs, options, and paths can lower the overall cost of your matter.

The Parties

The most important duty is the best interests of the children. In a divorce, the children come first. The parties must ensure that any children are in the best possible situation given the circumstances. Children are often the most vulnerable people in a divorce, and the law places heavy emphasis on protecting them as much as possible, even when the divorce is in high conflict.

The parties also have a duty to attempt family dispute resolution when it is appropriate to do so. Parties are encouraged to try it because it often lowers costs, is more efficient, resolves issues amicably, and relieves pressure on the court system.

The parties have a duty to give complete and accurate information so that their legal teams can discuss resolution options honestly and candidly. It is important to provide everything that is requested so your lawyer can work to the best of their ability and advise you fully on the law. The accuracy and strength of your legal advice depend on the accuracy and completeness of the information known. Honesty with your lawyer is a client’s duty, but it is also in the client’s best interest.

Takeaways

There are three key takeaways from section 7 of the Divorce Act:

1. Children come first.
2. When reasonable, you should try to resolve your matters outside the courthouse.
3. Providing full information when requested is not only a duty but also beneficial.

Children Come First

Children are often the focal point of a divorce because they are the most vulnerable people involved. This approach has downsides, though. A party might use the children for personal gain under the guise of acting in the child’s best interests. This is a common battle in family law.

Outside the Court

Court is expensive, time-consuming, and stressful for everyone involved. The law recognizes this and encourages parties to resolve their matters outside the courtroom. Resolution outside court is often more effective because of the more personal nature of alternative dispute resolution.

Full Information

Full and accurate information allows the system to work. Delays often stem from a lack of information, and delays directly drive-up costs. It is vital to give your lawyer the information they request so that your interests are best represented and you reach a resolution that is just, fair, and beneficial.