1

COLLABORATIVE PROCESS PARTICIPATION AGREEMENT[a]

Party1

and

Party2

  1. Choosing the Collaborative Process
  2. We choose the collaborative process to resolve the issues arising from our separation. In doing so, we agree to be respectful in our negotiations and to work together to achieve a mutually acceptable out of court settlement. We realize that we are responsible for the decisions we make. We understand that the process of separation takes place on legal, financial and emotional levels. We recognize that achieving our goals may require the assistance of professionals other than our lawyers.
  3. Guidelines for Participation in the Collaborative Process[b]
  4. We agree to:

(a)deal with each other in good faith

(b)be respectful, constructive and timely in our written and verbal communication

(c)follow the problem-solving steps in Schedule A to resolve our concerns

(d)express our interests, needs, goals and proposals and seek to understand those of the other, and

(e)develop an array of options for settlement and use our best efforts to negotiate a mutually acceptable settlement.

2.2We will not:

(a)use the threat to withdraw from the collaborative process or to go to court as a means of achieving a desired outcome or forcing a settlement, or

(b)take advantage of mathematical or factual errorsand will instead identify them and seek to have them corrected. [c]

  1. Collaborative Lawyers[d]
  2. Lawyer 1 is the lawyer for Party 1. Lawyer 2 is the lawyer for Party 2.
  3. Our lawyers and lawyers in their firms cannot represent us in court or at arbitration now or in the future, with the exception of an uncontested divorce and / or to obtain an order on consent of both parties.[e]
  4. Other Professionals[f]
  5. Whenneeded we may engage:

(a)a collaborative family professional or financial professional,

(b)otherprofessionals such as actuaries, business valuators, tax experts, mediators, and experts regarding children’s special needs.

4.2Neither of us may unilaterally terminate the services of a jointly retained professional. However, if either of us wishes to do so, we will advise our lawyer and canvas options to address any concerns.[g]

4.3We agree that our lawyers may exchange information with jointly retained professionals to co-ordinate efforts on our behalf.[h]

  1. Exchange of Information
  2. Weagree to exchange all information that may affect any choices or decisions that either of us has to make in this process.
  3. We will make timely, full, candid and informal disclosure of information related to the collaborative matters.
  4. We will promptly update information that has materially changed.[i]
  5. We will decide together how to collect and exchange all information and documentation regarding income, assets and debts. The form of this information exchange may be by:

(a)net family property statements

(b)net worth statements

(c)asset and debt summaries

(d)monthly budget summaries

(e)sworn financial statements, or

(f)other agreed upon formats.

  1. Confidentiality[j]
  2. All oral and written communication and information exchanged within the collaborative process is confidential and without prejudice. The only exceptions are:

(a)The following documents may be used at court or arbitration: sworn financial statements, original financial documents and Statements of Family Law Value prepared by a pension plan administrator or by a jointly retained actuary, and,

(b)Either of us, our lawyers or other professionals in this process may provideinformation that they are obligated by law to report to the Children’s Aid Society thata child may be in need of protection.

6.2We will not:

(a)use as evidence in court or arbitration any written or oral information or documentsprepared or disclosed during the collaborative process (other than the documents referred to in section 6.1(a)) includinge-mails, voice mails, letters, progress notes, meeting notes, budgets, projections for settlement, or the reports, opinions or notes of any professional retained in the collaborative process, or,

(b)compel either lawyer or any other professional retained in the collaborative process to attend court or arbitration to testify or attend for examination under oath.

  1. Beginning and Concluding the Collaborative Process[k]
  2. The collaborative process begins when we sign this agreement and it ends:

(a)upon the resolution of the collaborative matters as evidenced by a written agreement that has been signed by both of us and witnessed, or

(b)upon termination of the collaborative process as described elsewhere in this agreement.

  1. Withdrawal by a Party [l]
  2. If either of usdecides to withdraw from the collaborative process, we will provide written notice of the intention to withdraw.
  3. A party withdrawing from the collaborative process will wait thirty days before starting a court proceeding in order to permit both of us to retain new lawyers and make an orderly transition. We may bring this provision to the attention of the court to request a postponement of a hearing. We will provide a copy of this Agreement to our new lawyers.
  4. The requirement to wait thirty days before starting a court proceeding does not apply if there is an urgent matter that requires the court’s intervention.[m]
  5. Change in Collaborative Lawyer by a Party
  6. If either of us terminates the services of our lawyers, but wishes to continue with the collaborative process, we will provide written notice of this intention.
  7. Within 30 days of giving such notice, the new lawyer will sign a new Participation Agreement or will sign an Acknowledgement which states that the new lawyer has reviewed the Participation Agreement signed by the parties and confirms that he or she will represent the party in the collaborative process.[n]
  8. If the new lawyer does not sign a new Participation Agreement or an Acknowledgement within 30 days, the other party will be entitled to proceed as if the collaborative process terminated as of the date when written notice was given.
  9. Mandatory Termination By Lawyer
  10. A lawyer must withdraw from the collaborative process if his or her client has withheld or misrepresented important information and continues to do so, refuses to honour this or other[o] agreements, delays without reason, or otherwise acts contrary to the principles of the collaborative process referred to in this agreement.
  11. A lawyer withdrawing under this section will only advise that he or she is withdrawing from the collaborative process.
  12. Responsibilities Pending Settlement[p]
  13. During the collaborative process, unless agreed otherwise in writing, we agree to:

(a)maintain assets and property

(b)maintain all existing insurance coverage (and issues of beneficiary designations will be dealt with throughout the collaborative process)[q]

(c)maintain all existing health and dental benefit coverage

(d)refrain from incurring any debts for which the other may be held responsible.

  1. Enforceability of Agreements[r]
  2. Wemay enter into temporary, partial or final agreements during the collaborative process.
  3. Temporary, partial or final agreements must be in writing, signed by both of us and witnessed. If eitherof us withdraws from the collaborative process or the process terminates, a temporary, partial or final writtenagreement is enforceable and may be presentedto the court as a basis for a court order.
  4. Only written agreements signed by both of us and witnessed will be enforceable in court.
  5. Verbal agreements and concessions made during the collaborative process are without prejudice and are not enforceable against the other party. [s]
  6. Preservation of Legal Rights
  7. This process is without prejudice to any rights either of us has arising from our relationship or its breakdown.
  8. Our agreement to negotiate using the collaborative process is without prejudice to any rights either of us has to receive ongoing or retroactive child or spousal support. Neither of us will raise a lack of written notice as a defence to any claim for retroactive or ongoing child or spousal support.[t]
  9. Limitation Periods and Consent to Extension of Time to Protect Legal Rights[u]

(a)We have been advised by our collaborative lawyers that under law, the right to bring a legal proceeding expires if it is not made within a certain time. In particular, for married spouses, no application for an equalization of net family property shall be brought after the earliest of two years after a divorce or six years after the date of separation. Claims in equity or trust claims in relation to real property (land) have a limitation period of ten years after the date of separation or in the case of a trust claim against property other than land, two years after the date of separation.[v]

(b)We agree that neither party will lose his or her right to commence a legal proceeding or take any legal step if the collaborative process does not result in a settlement and a limitation period (including but not limited to those mentioned above) expires during the collaborative process.

(c)We hereby agree that, for the duration of the collaborative process, and as outlined below,the running of any limitation period limiting the time within which a cause of action or a step in a legal proceeding may be commenced ortaken by either of us against the other shall be tolled and suspended. The limitation period will not begin to run again until 60 days after:

i) one of us provides to the other written notice that he/she wishes the limitation period to begin to run, or

ii) the termination of the collaborative process.

We each hereby consent to this extension of time for either party to commence a legal proceeding or take any step necessary to pursue a claim. Either of us may rely on this provision if, as a result of attempts to use the collaborative process, one of us does not make a claim within the limitation period, and we both desire that a court will respect the terms of this provision.

  1. Acknowledgement of Commitment to Collaborative Process
  2. We have read this Agreement in its entirety, understand its content and agree to its terms.
  3. This agreement may be signed on separate dates. The separate agreements together constitute one and the same document. [w]

Date: 2015______

Party1

Date: 2015______

Party2

Date: 2015______

Lawyer1

I will represent Party1

in this collaborative process

Date: 2015______

Lawyer2

I will represent Party2

in this collaborative process

Schedule A

collaborative Negotiation Steps For Effective Problem-Solving

Step 1BUILD THE FOUNDATION

  • Introduction and overview of the collaborative process
  • Decide problems to be solved
  • Consider the need for other professionals, such as family, child and/or financial specialists

Step 2GATHER AND EXCHANGE INFORMATION

  • Identify goals, needs and interests
  • Identify what financial information is needed and exchange it
  • Agree upon and initiate any joint valuations

Step 3IDENTIFY INTERESTS

  • Prioritize goals, needs and interests – immediate and long-term – regarding issues and process

Step 4IDENTIFY CHOICES

  • Explore widest range of possible solutions
  • Consider everything, rule out nothing

Step 5evaluate consequences of each choice

  • How would each option affect each person and the children?
  • Consider immediate, intermediate, long-term impacts

Step 6COME TO A decision and implement DECISION

  • Generate settlement proposals that satisfy interests of both
  • What do you see as the best solution for both?
  • Prepare Separation Agreement incorporating joint decisions

[a] The interests behind the proposed amendments to the PA are as follows:

a)update the PA now, knowing that a more comprehensive review will take place at the OCLF level. Keep the process of updating the PA as simple as possible, leaving more contentious issues to another day when the OCLF is more involved in this type of a review

b)focus primarily on process issues, leaving potentially contentious issues to subsequent collaborative meetings (i.e. children’s residence, severing joint tenancies, beneficiary designations on life insurance policies). The Privacy Policy has been removed on the basis that this is an issue that each client resolves with his or her own lawyer and other professionals. In any event, we felt the Privacy Policy went too far in that collaborative professionals ought to be able to retain personal information for the purpose of defending against potential negligence claims.

c)eliminate the Limitation Periods clause until further review at the OCLF level

d)streamline the process of executing the agreement to minimize the need for revisions. For example the agreement does not distinguish between team and non-team cases

e)clarify some of the wording

f)consider issues raised by the IACP’s model participation agreement.

g)improve the formatting by using automatic paragraph numbering and using the same formatting as the Divorcemate agreements

h)eliminate the capitalization of wording. (For example, why is “Collaborative” capitalized but “court” is not?)

i)have a single PA for use in team and non-team cases

j)make the wording more reader-friendly. Jane Griesdorf, a university professor who provides LSUC seminars on writing skills suggests that we should be writing to a grade 8 level. Much of this agreement is above grade 8 level. However, only paragraph 3 contains proposed changes based upon reading levels as identified in brackets. Further revisions could be made to improve the readability of the PA.

[b] For consistency, the phrase “collaborative process” is used throughout in place of “collaborative practice”.

[c] The previous version of this paragraph stated “We will not take advantage of mistakes made by another, but will disclose them and seek to have them corrected. We will immediately correct mistakes and advise of changes to information previously given.” The new paragraph attempts to define the “mistakes” we are dealing with. It also removes the words “made by the other” because both parties are, of course, capable of making errors. The last sentence is more or less incorporated into section 5.3.

[d] This section was changed because of the high reading grade level of the current precedent, which is reproduced below. Numbers in brackets represent the reading grade level.

3.1Each lawyer has a professional duty to represent his or her own client diligently, and is not the lawyer for the other party. (12.9)

3.2Each lawyer’s representation is limited to providing services within the collaborative process. Neither lawyer, nor any member of his or her law firm, may represent either party in a court or other contested proceeding between them related to issues arising from their separation, including a review, variation or separation arising after a future reconciliation. (19.3)

[e] The precedent clause includes the following statement: “The Lawyers’ representation is limited to providing services within the Collaborative process.” Further debate is required here. Should a client have the ability to continue to retain his or her collaborative lawyer in limitedsituations. For example, if the collaborative process breaks down, should a party be able to retain his or her collaborative lawyer in connection with out-of-court negotiations or to obtain an uncontested divorce?

[f] We combined the Collaborative Professional and Other Professionals into one paragraph. The purpose of doing so is to ensure that the rules for terminating a jointly retained professional and allowing for an exchange of information apply to both types of professionals.

[g] The following was omitted from the precedent agreement: “that person will advise his or her lawyer who will convene a meeting with the team and the other spouse to explore the impact of termination on the Collaborative process and canvas options to address the concerns.” This mandatory process may be onerous in that a full team meeting is required together with the spouse. There may be other options for addressing the party’s concerns.

[h] Similar wording was found in “Team Communications” in the precedent.

[i] This clause is recommended by the IACP’s Model Collaborative Practice Participation Agreement (for use in jurisdictions that have not adopted the Uniform Collaborative Law Act):

[j] This paragraph was revisedin terms of its content and in attempt to make it more reader-friendly. The following paragraph was removed “(e) The verbal agreements, concessions or statements of any kind whatsoever ..are confidential and without prejudice.” The paragraph already states that everything is confidential. The following statement is in section 10.4 “Verbal agreements and concessions made during the collaborative process are without prejudice and are not enforceable against the other party.”

[k] A similar clause is suggested in the IACP Model Collaborative Practice Participation Agreement (for use in jurisdictions that have not adopted the Uniform Collaborative Law Act)

[l] The precedent paragraph previously entitled “Withdrawal from Collaborative Process” has been divided into three paragraphs as the paragraph actually deals with three distinct issues.

[m] We added this sub-paragraph. The 30 day waiting period is designed to prevent a party from taking advantage of the other party by starting a court proceeding on short notice. However, there may be circumstances where an urgent court proceeding may be required (i.e. where there are safety issues, children’s issues, preservation of property, etc.).

[n] We inserted the option of the new lawyer signing an Acknowledgement in order to streamline the transition.

[o] We added the words “this or other” as a party may violate an informal agreement or an interim agreement.

[p] The following additional clauses are found in the precedent:

(e) maintain the ordinary residence of the children

(f) we do/do not wish to sever the joint tenancy of (address of property).

The clauses have been removed from the precedent because these substantive issues can be addressed in subsequent collaborative meetings. They are potentially hot button issues which may not be conducive to a first meeting.

[q] The words “(and issues of beneficiary designations will be dealt with throughout the collaborative process)” have been added. For example, a lawyer may be negligent in advising a client to maintain existing beneficiary designations where a client does not owe a child or spousal support obligation or an equalization payment.

[r] The study group recommends that the OCLF consider this section further as there is currently no accountability in the event of a breach of this section. Should there be a dispute resolution process if a breach occurs? Should there be specific consequences for certain breaches? An automatic termination of the collaborative process may not be advisable as the innocent party may want to participate in determining how to remedy the breach rather than have the process terminate.

[s] It is helpful to emphasize that concessions or temporary verbal agreements made during the process are not binding with the result that either party may change his or her mind throughout the process.

[t]The case law indicates that a claim for ongoing or retroactive child support can only be made while a child has an existing entitlement to support. As a result, if your case involves one where a child will soon no longer be eligible for support (i.e. a child is about to complete his or her education) consider whether this paragraph is sufficient orwhether you need to start a court proceeding to preserve that claim. If so, you can refer to the ability to commence that court proceeding in the participation agreement.