When a couple separates, they may need to consider the following issues;
• A parenting plan (including a residential schedule) for their children
• The disposition of the home they are living in together
• Financial arrangements for the family’s living expenses (child and spousal support)
• How they will share the property they have accumulated
When a couple is planning to move in together or marry, they may wish to consider making arrangements to deal with the financial and other issues that might arise in the event of a future breakdown of their relationship
These are the process options available for resolution:
The end result of any of the processes described below could be a Domestic Contract, which is a legal document signed by both spouses detailing the arrangements they have agreed on. The terms negotiated;
• after separation - are included in a Separation Agreement
• before cohabitation - are included in a Cohabitation Agreement
(which may become a Marriage Contract if the parties later marry)
• before or during marriage - are included in a Marriage Contract
Kitchen Table Negotiation: Some couples are able to discuss and negotiate issues directly between themselves. It is still important for each spouse to retain a lawyer for independent legal advice and to prepare a legally enforceable Separation Agreement (or other Domestic Contract).
Lawyer to Lawyer Negotiation: In lawyer to lawyer negotiation, also referred to as traditional negotiation, each spouse retains his or her own lawyer. The first step is often the exchange of financial documentation. The lawyers then exchange settlement proposals. If the case is not by then settled, there can be a four way settlement meeting (held in one room or separate rooms). The parenting issues can be mediated by a parenting mediator (such as a social worker or psychologist trained and experienced in family law negotiation) while the financial issues are negotiated through the lawyers. If a negotiated settlement on all issues is not achieved, one of the spouses may start a court application.
Mediation: In mediation, a couple works with a mediator who helps them discuss and negotiate the issues arising from the separation. Often in mediation (particularly in relation to parenting issues), the spouses work directly with the mediator without lawyers present. If necessary, the lawyers may be involved in the mediation sessions. Regardless of whether lawyers are present at the session, each spouse needs to have his or her own lawyer to receive independent legal advice. It is best to obtain independent legal advice early on in the mediation process so as to understand the legal issues and the implications of what will be discussed. Mediation allows for the integrated involvement of financial professionals and parenting professionals. If a negotiated settlement on all issues is not achieved, the case may proceed to Arbitration (with the agreement of the couple) or to court.
Collaborative Family Law
Collaborative Family Law is a co-operative process in which lawyers offer support and guidance to the couple as they respectfully negotiate settlement. Each spouse retains a lawyer trained in collaborative practice. Collaborative negotiation is interest-based, as the couple and their lawyers follow these steps:
• Identify interests and goals (what is important to each person; to the children?)
• Gather financial, legal and other necessary information
• Explain the range for settlement under the legal model
• Create various settlement options specific to the couple’s circumstances
• Evaluate and select the option that works best and prepare the
In Collaborative Family Law, the couple and their lawyers first enter into a Participation Agreement and then work through these steps together. The Participation Agreement formalizes the parties’ commitment to negotiate in good faith and the collaborative lawyers’ commitment to negotiate outside of court. The lawyers are obligated to withdraw if either spouse decides to go to court.
Collaborative Process allows for the involvement, if needed, of financial professionals who streamline the gathering and analysis of financial documentation and add value to the negotiations. Collaborative Process also allows for the involvement, if needed, of family professionals (parenting mediators, neutral facilitators, coaches and child specialists) who provide information and support, and assist in the negotiation of a parenting plan. They can facilitate meetings and help to keep communications respectful.
Court/Litigation or Arbitration
When a couple cannot reach agreement on some or all of the issues, it may be necessary to have a judge or arbitrator decide.
Court/Litigation: The family court system in Ontario is designed to encourage early settlement. The first stage of a court proceeding is a Case Conference in which the court ensures that financial disclosure is completed; the legal issues are narrowed; and, options for early resolution our canvassed. The Case Conference may be followed by motions to obtain temporary orders for the production of necessary information, and for interim parenting and financial arrangements. If the case concerns a previously made Agreement or Court Order, it can be diverted to an experienced family law lawyer who acts as a "Dispute Resolution Officer" (a DRO) who assists in trying to settle the matter. If the matter is not settled, it will proceed to a Settlement Conference in which the judge assists the couple in an endeavour to settle their case. If agreement is reached, the terms of settlement can be documented in MInutes of Settlement or a Court Order. Most court cases settle without a trial.
Arbitration: Arbitration is similar to court/litigation except that the person making the decision, the arbitrator, is appointed by the couple. The arbitrator is usually an experienced family law lawyer. The ruling of an arbitrator is binding. Sometimes the couple appoint as their mediator a person who will ultimately arbitrate any issues that remain unresolved after mediation.
Please contact us today to learn more or to arrange an in-person consultation.
Options for Resolution