Divorce Law & Reconciliation

With Valentine’s Day fast approaching, is there a better topic to blog about than Divorce?   Well, the answer to that rhetorical question is actually “No, there isn’t!” This is especially true when I want to quickly highlight a role that a Divorce lawyer can play in actually preventing marriages and relationships from dissolving.  

Under the Divorce Act, the government legislation for processing divorce, lawyers have a strict legal obligation and duty to discuss with a client:

1. The possibility of reconciliation with spouses; and
2. Inform the client of marriage counselling or other guidance facilities that are available to help with reconciliation.

Any time a lawsuit is started seeking Divorce, the lawyer signing that document must affirm that they have lived up to this duty (I have reproduced this certificate below for your reference).  This is a duty that I personally take very seriously.

For the most part, by the time a person comes to a lawyer, they have fully made up their mind about separation and moving on.  A lawyer bringing up reconciliation or marriage counselling is often met with a “no thanks”.    However, there are some people who come to you lost, confused and uncertain about their emotions or what they want out of their relationship.  The lawyer who fans the flames of separation without truly understanding if that is what their client wants does a great disservice to that client and society as a whole.  

Lawyers get a bad rap on this front, I think.  The vast majority of lawyers I know also take the above duty seriously.  In my decade plus career, I have been involved with only two reconciliations out of the many separations that have come before me.  Although those reconciliations represent only a small percentage of the couples I’ve seen, those are two cases where the parties didn’t spend significant sums of monies on lawyers and where kids grew up in a home with both parents.  I would like to think that my duty to discuss reconciliation, and the community services that can facilitate it, played some small role in those two situations.  

                                               LAWYER’S CERTIFICATE (Divorce Act (Canada), s. 9)

I, [lawyer’s name], lawyer for _______certify that I have complied with section 9 of the Divorce Act (Canada), which says:

9(1)      It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding

(a)        to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and

(b)        to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

(2)        It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.