Kathleen Wells – Effectively Navigating Divorce Through Mediation or Litigation (#3)

Jeannine Crofton

This is Family Law Matters, a podcast series that introduces you to mental health and legal professionals in the area of family law. We’ll be talking to experts who guide moms, dads, and children along transitions of separation and divorce. My name is Jeannine Crofton, the principal at Resolvology Inc. I’m a family law mediator in Alberta and a psychologist in Alberta and Ontario. My hope is to provide information and a bit of optimism to listeners who are in the midst of restructuring their families. Before we begin, just a quick reminder that information heard on this podcast is not to be construed as psychological, financial, or legal advice. Please consult a professional concerning your specific circumstances. On this third episode, we are interviewing a family lawyer, Kathleen Wells. Kathleen is the principal at Wells Family Law and offers a legal representation to people experiencing separation and divorce. She also offers other service such as cohabitation agreements. Please see a complete bio for Kathleen on my website at resolovology.com.

 

Jeannine Crofton

Welcome, Kathleen.

 

Kathleen Wells

Thank you for having me, Jeannine.

 

Jeannine Crofton

So, we’re so thrilled to have you talking about the role of family lawyers in the family law process. But I know that whenever lawyers are giving speeches or providing information, there’s a little bit of a Disclaimer. So perhaps we should get the legally over with as we start. And you could tell us a little bit about what you’d like to tell us in that regard.

 

Kathleen Wells

Sure. Thank you, Jeannine. So, I guess at the start, this isn’t meant to be legal advice in any way. It’s just meant to be an informative session talking to people about some options and what’s available and what things are out there related to family law that might be of assistance to them. If they need legal assistance, they can always contact lawyer referral service offered through the Law society, or they’re always welcome to give myself or any of them or my great colleagues out there a call.

 

Jeannine Crofton

Great. Thanks for that. So, Kathleen, you and I have known each other for a little bit of time, but I don’t think I’ve ever asked you how it is you decided to specialize in family law. Do you want to tell us a little bit about your origin story?

 

Kathleen Wells

Yeah, I guess I kind of fell into it, to be honest. I went to law school thinking I was going to be the next great criminal lawyer, the next Eddie Greenspan. And then after doing criminal law, I decided that perhaps not where my forte lied. And I was lucky enough to work at a firm who allowed me the opportunities to try different areas of law. And I was introduced to family law fairly early on in my career and just found a niche for it. I really liked the people I was helping. I like to hear their stories and really feel that I can help influence a change in their life or hopefully a positive change in their life. And so that’s quite rewarding. I’ve been doing it now exclusively for 20 years, and I really enjoy it.

 

Jeannine Crofton

You have started your own firm, is that right?

 

Kathleen Wells

I did, yes. I started my own firm in 2017. I don’t think my philosophy is that different to a lot of other lawyers, but I was kind of tired of the big law firm grind and wanted to have the freedom to do some of my own things and run my practice the way I wanted to.

 

Jeannine Crofton

It’s very interesting because I think every lawyer brings so much of them personally to the work that they do. I think we all do. And so, I always describe you as being lovely whenever I tell people about your services. I’m interested to know the role is of a family law lawyer. I think so many times we see media, we talk to friends, and we think we have an exact idea about what lawyers do. But in this instance, when somebody reaches out to hire a family law lawyer, can you tell us a bit about your role?

 

Kathleen Wells

For sure. So, I mean, it all starts with learning about the individual clients and finding out what their particular needs are. A lot of people think that family law just deals with divorce, but we deal with a whole gamut of issues, ranging from adoption to common law situations to separations of common law to married divorces and or planning for cohabitation agreements before either living together or getting married. So, there’s more to it than just helping people decide what to do or how to devolve the end of their relationship. So, what I try to do and I think most family law lawyers do, is we try to listen to what the needs and issues are of our clients and then try to help them find a path forward. So, my role as a lawyer is to try and listen to the client’s issues and find out what the best path forward is for them. And sometimes that involves the legal process, and sometimes that involves a different process mean alternative to litigation.

 

Jeannine Crofton

So, when you think about a just right situation where somebody hires a family lawyer, how does that often play out when it goes well.

 

Kathleen Wells

I always hope that when I meet a person and I talk to them about their issues, that they have a path forward or they at least thought about what they want for their family. And so that could mean prior to entering into a relationship, whether that be common law or marriage or how they want to develop that relationship at the end. And I hope that they come with hopefully some respect for the other person and some financial information and a path forward if they have children, what they want for their children and really what they want for their life to look like if it’s at the end of a relationship.

 

Jeannine Crofton

And for those folks who need to go into court, there’s a number of different levels of court. And can you tell us the difference between those?

 

Kathleen Wells

Sure. So, there’s the Provincial Court of Alberta, which I think we all like to call the workhorse of the court system because it sees lots of families and it tries really hard to help unrepresented persons or persons who were never married. The legislation that deals with the Provincial Court doesn’t deal with federal matters which is divorce. The Court of Queens Bench, that court deals with matters that are relating to any kind of property and as well as any kind of divorce matter, there’s different levels of jurisdiction. So, the Provincial Court is governed by the Provincial Court Act, and the Court of Queen’s Bench is governed by the Federal Court. And they’re all under the umbrella of the rules of court. But typically, the Provincial Court deals with more immediate or urgent needs relating to families. The Provincial Court has a lot of child welfare matters. They do a lot of emergency protection orders, those types of things in the first instance. And then if the file proceeds to a divorce or if it proceeds to a property issue, then it is generally moved to the Court of Queen’s Bench or in the case of a divorce, it just starts in the Court of Queen’s Bench.

 

Jeannine Crofton

And so, if somebody is represented by a lawyer, where would they most often find themselves in the Provincial or the Queen’s Bench?

 

Kathleen Wells

I suppose that depends on the lawyer. Certainly nothing against the Provincial court. I mean, they do an amazing job. I think my comfort level is and always have been with the Court of Queen’s Bench. And I suppose that’s primarily because most of the matters I deal with are dealing with divorce and or property division. And so, I think most people that are looking to end a marriage, they have to start there by circumstance. So that’s particularly where I’m most comfortable where the most matters end up, it depends on the application or the issue which the parties are having. Some matters, if they’re dealing with Provincial legislation such as child services or any of those matters typically start in the Provincial Court. Any matters that are dealing with divorce or with property automatically get started at the Court of Queen’s Bench. The Provincial Court does not have the jurisdiction to deal with property or divorce in Alberta.

 

Jeannine Crofton

Regarding the issues of child support, parenting time, guardianship, those are the types of things that somebody would be able to address in both levels of court?

 

Kathleen Wells

Yeah, they sure can. I think when you’re looking at a file, you have to look at what the whole package is. Sometimes people go off to court and they file in one court and realize they should have been in the other court. And so, I think when you’re wanting to look at a process, it’s important to see what issues you need to address. That’s why it’s always good to talk to a lawyer initially, because the lawyer can help you sort through those issues. If there’s no property and no divorce action that must be commenced, then the Provincial court can be a very efficient way to get your matter dealt with. They have lots of services also offered through the Provincial part as well.

 

Jeannine Crofton

Kathleen, the Divorce Act has changed in 2021. Can you tell us when it changed and what are some of the big shifts that have been made with the new legislation and how it might play out in Alberta?

 

Kathleen Wells

Yeah. So, I think a couple of things. The Divorce Act changed March 1, 2021. The changes came into effect, and there’s a real focus on protection of family and protection of the children’s best interests. So, there’s been a lot of consideration given to domestic violence and the way those matters have to be

addressed right from the get go, right from the time that you meet with a client to how you proceed to trial.

You have to address those matters head on to see if there’s any issues of domestic violence or any concern for safety, for the clients that are in the process There’s also a focus on children and really a focus on what’s in the best interests of the children. The Divorce Act has now gone away from the traditional usage of the term custody, and now they’re using the term parenting and parenting time, which I think is a lot kinder and gentler way to start a process.

 

Jeannine Crofton

So, Kathleen, I think what our listeners might really benefit from is some of your years of experience. You’ve been working with families, walking through this process for a long time, and what advice would you give to a family who is either initiating this process or is finding they are struggling through it?

 

Kathleen Wells

Well, the first thing that I always ask clients is do they have any kind of support for themselves. When I say support, I mean not only just familial and friendship support, but I typically mean psychologists and other types of support. A lot of times when people are going through this process, if they’re asking friends and family or for support or for guidance, they’ll often hear what they want to hear, or well-meaning friend or family member will tell them what they think they want to hear. And sometimes they don’t get what they should be hearing. And I always tell clients to try and check their emotion as much as they can. I appreciate that this is a very emotional process or can be a very emotional process, but I try to remind families that initially they were very much in love with the other person, and they made a choice to have children. And the person that they are divorcing is generally not that much different than the person they married or cohabitated with. It’s just that maybe they’ve grown apart over time. And particularly in a file that involves children I try to remind families that this parent, the other parent, is going to be in your life for potentially forever.

 

Kathleen Wells

There’s going to be all kinds of wonderful celebrations in that child’s life and disappointments. Although you’re no longer in a relationship, you have to still be there for the child. I think a lot of family law problems could be avoided if they try to remain respectful of the other parent. And I know that’s hard, but lawyers are here to help guide the legal process, and we’re not experts in the emotional process. And that’s why I feel that referring them off to a psychologist like yourself is one of the best choices families can make. And it’s also a really great way for families to keep their costs down because a lot of clients call me and want to vent about their ex-partner. Although I can empathize with them, I don’t really have the tools necessary to give them the guidance that they need. And so, I can sort of refer them to other experts in that field. I find the files that are the most costly are the ones where people have the most personal issues, and law can’t help those personal issues.

 

That’s not what the system is designed for. Finding clients an alternative to get personal issues  addressed is key in any file that I take on.

 

Jeannine Crofton

It’s really good to hear Kathleen. I’ve been mediating for 25 years, and I’ve been a psychologist for over ten years. And so often there are feelings of really distinct anger, and a lot of intensity in people’s emotions around that time. Underneath the anger is often sadness. And I think that as a culture, we’re sort of okay with expressing anger on a certain level. But when you really peek underneath that, there’s almost always a sense of sadness. And so, talking with a psychologist and really finding a place to express that sadness. There also may be some traumatic experiences within the marriage or the relationship. I agree with you. I think that there’s value in being able to speak to that and have somebody else really hear them, an expert who knows what to do with some of those big and raw emotions. Sometimes when I’ve seen people, it’s been one or two or three sessions, and then they go back to their lawyer and they’re just a little bit calmer a little bit more able to look at the issues with clarity.

 

Jeannine Crofton

And as a mediator, we really try and redirect what is a lot of good intention. People really want the best for their children. They want the best long term. If we can redirect people into looking at the issue and direct some of that passion that you’re experiencing to help you get what is best for you and your kids? I think this is what lands best when they come to see a lawyer. Is that right?

 

Kathleen Wells

Yeah, for sure. I think in a perfect world, if I had any kind of real power, I would require any person going through a divorce to have some kind of counseling available for them. I think that there are some processes that the court does require parents with children under the age of 16 to participate in. But I really think that the loss of a spouse or a partner is a very traumatic point in somebody’s life. I equate it often to a death, but worse than a death, because with a death, it’s final. With a divorce or a separation or end of relationship, that other person is still out there. Having that support to work through those emotions and getting to put the person in the best position they can.  Considering the circumstances would save a lot of our courts time. You often see families in court asking the judge to make very complex decisions on parenting issues. I think it’s really so sad because you have two parents that love each other enough to have a child, and then they’re asking somebody who they don’t know who has no true involvement in their family or knows what’s best for their family or their child being asked to make a decision.

 

Kathleen Wells

I think that’s really sad for a lot of families. I think what I’m seeing in family law is an amazing shift towards alternative dispute resolution and trying to get matters out of court. Working in sort of a collaborative system where we can work in conjunction with psychologists and mediators or arbitrators or finding families resources they need to help find solutions to these problems. I think when I look back on my practice, the files that are the ones that endure are the ones where the parties had a participation in the process. I mean, they actually got to speak and have a chance to help their family. The files that are continually coming back across my door are the ones where they went to court. When you go to court, nobody’s ever happy with the outcome. Nobody wins. In my opinion, it’s always a lose-lose situation. Largely, it’s very costly, it’s time consuming, it’s emotionally draining, and it pits one person against the other. So how could that process ever be about supporting families. It’s not designed to support families. It’s designed to find a solution to a very difficult problem.

 

Jeannine Crofton

Kathleen, it just occurs to me as we were talking, that when I first started in this industry, there weren’t a lot of online ways of communicating. How has Facebook and Instagram and all of these things, complicated the family law space? Has it made it more difficult? Tell me about your experiences and your thoughts about that?

 

Kathleen Wells

Yeah, well, I must admit, I’m a bit of a Luddite. I’m on the computer at work all day, so I don’t like to spend a lot of time on the computer myself. But I can say that I see files are really complicated by social media. I think we live in this generation where everybody wants something so instantaneously. So, people often send emails or text messages, and they expect somebody to respond right away. When you don’t get a response right away, I feel it creates a sort of anger. Somebody’s waiting there demanding that something be replied to, or somebody posts something unfortunate on a social media site like Facebook or Instagram or something. It causes all kinds of hurt and confusion. And I always tell parents, check yourself before you start putting things out on Facebook and other media venues. Make sure that you know that the world can see those. Even if you’re locked down, there’s always somebody who you forgot to disconnect, who’s taken sides in your divorce matter and can always pull up information that perhaps wasn’t your best shining moment in life. The other thing is, when parents are communicating on text messages, it’s really hard.

 

Kathleen Wells

I find it a lot. I’ll get an email from somebody and it’s really hard to understand the tone. Sometimes when I read messages, I think, gosh, that was cheeky. And I don’t know that that’s what the person intended. I think as a society, I think personally we’re just losing the ability to communicate. We don’t often pick up the phone and just ask somebody, hey, is that what you really meant? Is there something I can do to facilitate this problem? Rather than sending back these text messages back and forth, often at very emotive times in their breakdown of their relationship maybe make a call ? So, yeah, I would say that it has impacted the divorce process. And I think there’s probably some really great things. There’s great technological advances that people can communicate with, like what we’re doing now. I think for parents that have to travel for work or have to live in different areas from their children, it’s wonderful that they can see their children and communicate with them more frequently than they would have before. I think that it’s great that you can keep in touch with your children at school and send them a text message and things.

 

Kathleen Wells

I just really caution parents about using technology for improper purposes and using it for hopefully good instead of bad.

 

 

Yeah.

 

Jeannine Crofton

I was thinking about how technology and texting have improved life. Certainly, if somebody is going to be ten minutes late to pick up or drop off the child they can send a quick message.  Just having the convenience of pulling over to the side of the road and texting saying “I’m on my way”. Those kinds of communications can be helpful in terms of ensuring parents feel  respected. So, I see both sides of it. There’s been some really good things that have happened since people have had access to technology. Technology has allowed parents to set boundaries for their co parent even if it a thought that they don’t have to respond to that text in this moment. I can go away and maybe think through how I want to respond. Also remembering that it all gets captured.

 

 

Right.

 

Jeannine Crofton

I think that’s the other piece of it is that once it’s down there in tech, sometimes those pictures are taken and then it becomes used in the battle. That’s the downside that I’ve seen.

 

Kathleen Wells

Yeah. It always leaves the footprint. Even if you think it’s gone, it’s generally there somewhere. I think when I have couples that are in a conflict, one of the things I like to encourage them to do is just like you said, wait and think about, don’t instantaneously respond to something. Take a minute, take a day, take two days, think about what it is the person is actually asking and respond only to what you need to respond to and don’t get into that sort of negative dialogue. I think you can sort of retrain people in how you respond. I think if you respond in kind and you take time to have a thoughtful reply, people will be more inclined to respond favorably as well. Although you may not be a big fan of theirs at the particular point in time of your separation, I always try to ask them when they pick up or drop off the child, make sure that maybe once or twice a month they’re just saying something positive like thanks for having Johnny ready and thanks for having his backpack ready, or thanks for helping him with his homework.

 

Kathleen Wells

Just saying thank you. A simple, kind word to somebody can really change the dynamic in a relationship. And over time, I think parents, if they try to live by that, will find that their relationship and their parenting time will really improve.

 

Jeannine Crofton

Yeah, I agree. Sometimes it’s these small things over time make such a big difference because we all know that at the beginning of the separation it is hard and it doesn’t have to stay difficult. Often after a little bit of time and some experience and some getting on the other side of it, things calm down and it’s just a little bit easier. So sometimes those small things make quite a difference.

 

Kathleen Wells

And I know we sound like we’ve been talking about all these negativities. I just want to mention that most families are pretty well adjusted, well intentioned and well-meaning people. And it’s only a very small percentage of my files that I see in my practice that are sort of high conflict. Most families that are separating come to me with some general ideas on what they would like to see for their family, and it’s my job to help try and facilitate those. One of the things I like to do,  as well intentioned as anybody is when they’re going through this process, is to advise them there’s going to be some bumps along the way. Whether it’s one month, one year or ten years down the road, there’s always going to be something that happens. And so, I try to really talk with my clients about the “what if’s” and saying, well, “how would you feel about a new person coming into the relationship?” What do we need to address in this agreement between you and the other person? Or do we need to just say, we don’t know what’s going to happen in the future, but we can certainly create a new agreement process for which you’re going to be guided in the future.

 

Kathleen Wells

I think most family law lawyers would agree that process should be guided away from the courts as much as practical and have them commit contractually to a process that’s going to allow them to participate and give them a voice in the process. So, most agreements that you’ll see from family law lawyers have a built-in resolution mechanism. So, they typically start with a mediation clause and or a parenting coordination clause where they’re working with somebody as expert on parenting issues or they’re dealing with the mediation arbitration clause, just ways to keep families out of court and to get their issues resolved timely and hopefully cost effectively. Part of the reason I like to recommend medical professionals like yourself is a lot of families have extended health care benefits, and so a lot of their problems can be resolved through the luxury of those benefits, through their extended health care plan. Lawyers charge an enormous amount of money and I do think it’s important that lawyers are mindful of their time and their fees and that clients are given options, cost effective options to try and resolve their problems without need of lawyers and reports.

 

Jeannine Crofton

Thanks so much for joining us today. Kathleen.

 

Kathleen Wells

Thank you so much for having me. It’s been a pleasure.

 

Jeannine Crofton

Family law lawyers are advocates. They are people we hire to act on our behalf to help us get what we need. Sometimes the best representation is a person who can tell us when we are being treated fairly in the process of separation. When people become embattled in a divorce proceedings, there are many losses on both sides. Loss of finances, productivity, emotional energy, and time. A lawyer who has your best interests at heart can help you assess whether a divorce battle is best for you. That’s it for this edition of Family Law Matters. I’m Jeanine Crofton. Thank you for listening. Connect with us by emailing Resolvology@gmail.com. Ask us your questions about family law issues and look for our blog articles to address your pressing questions. Check out the other work we do at Resolovology.com. You can follow us on Twitter at R-e-s-o-l-o-v-o-l-o-g-y_YYC. Thanks to May Wilcox for her work on this podcast series and thanks as well to Kathleen Wells for her thoughts on resolving your family law issues. Be sure to subscribe to the rest of the series where you can gain insight from other professionals to assist families going through separation and divorce in Alberta.