Privacy, your privacy…what is it worth to you? Does anyone consider privacy when they retain a family lawyer to assist with their separation and divorce? Well, sometimes it is considered, but I am going to bet that most times, privacy is not considered at all. The selection of a process through which to address the issues involved in resolving a family law case, is a critical choice to avoid the risk of one’s privacy being violated. Why? How?
Some background is necessary. There are two main sources of law used to resolve family law cases. The first is legislation. Legislation is government made law. The Family Law Act and the Divorce Act are examples of legislation. The second source of law is the common or case law.
Case, or the “Common”, law is law developed by the Courts interpreting legislation as it applies to the facts of a particular case. Where there is confusion, lack of clarity, or ambiguity over the interpretation or meaning of the legislation (or a section or sections of the legislation), there can be disagreements over the way in which to apply the legislation to the “facts” of the case. These disagreements can lead to disputes. In these situations, assuming the parties and their lawyers are unable to agree, the Courts are asked to interpret and apply the legislation to the facts of a particular case to determine the outcome of the dispute. In other words, the Court grants an Order. The basis of the Order is called “Reasons for Judgment”.
These “Reasons for Judgment” are used by lawyers and the Courts to assist in the determination of the outcome of future cases. This is the process through which the law is developed. They provide the support or the “precedent” to assist lawyers and judges determine to outcome of the dispute before them. To find these precedents, lawyers and judges search “reported” cases. These cases can be found on government websites and are available to lawyers and the Courts and anyone who cares to search.
In many of these cases, the names of the spouses are included. The names and birth dates of children, what the spouses do for a living, where they work, the city and town that they reside, the background of the relationship and often times the circumstances and events leading to the separation may also be included*, ….disturbing, but true!
Case law is a significant part of the development of our laws. There are certainly extremely good reasons for it to continue. It needs to, and will, continue. The question is whether spouses wish to subject each other and their family to this process? Take the time to think about this question in the selection of the process to address your family’s resolution. This is a very important question!
The Court process is not the only way in which to resolve a family law matter. There are many Dispute Resolution Processes available to a couple that do not involve the Courts in any way (other than to obtain an uncontested Divorce Order). There are many professionals who have the training to avoid the Court process completely and, therefore, to also avoid the potential violation of a family’s privacy.
These Dispute Resolution Processes have potential benefits that go far beyond the retention of privacy of one’s family. Ask me about these process options and how you and your family can benefit from these resolution oriented processes. Resolution oriented professionals are available to assist. Stay strong and find yours!
* In British Columbia, efforts have been made to attempt to protect the sensitive information, but that protection only goes so far.
