How Can I Resolve My Separation or Divorce?
If you are facing a separation or divorce, and you and your spouse are not able to come to an agreement, there are a number of ways that you might reach a resolution.
Collaborative Family Law
In collaborative family law, couples work together to reach an agreement in a non-confrontational and cooperative process. The parties each choose their own legal counsel and may also agree to retain other professionals such as financial planners, mental health professionals, or coaches. At the outset, the parties sign a Participation Agreement, which includes an agreement that they will not proceed to court and, if they do, they must retain new legal counsel. Every professional involved is specially trained and certified in collaborative negotiations. For more information, visit Ontario Collaborative Law Federation and Collaborative Practice Ottawa. Jennifer is a member of Collaborative Practice Ottawa and is able to offer this option to clients.
If you cannot come to an agreement on your own, you and your spouse may each retain a lawyer to represent you in negotiations. Your lawyers will exchange written proposals and you might attend "four way meetings" where you, your spouse, and your lawyers all attend to discuss resolution options. Once you have come to an agreement, your lawyers will prepare a Separation Agreement that incorporates the terms.
In mediation, you and your spouse agree to appoint a neutral third-party to help you reach an agreement. Your discussions in mediation are in most cases confidential. Your participation is voluntary and you can end the process at any time, and agreements you reach are only binding when you have signed a separation agreement. The mediator will not make a decision for you if you cannot agree, although you may agree in advance to have the mediator make a decision for you, or "arbitrate", the dispute if mediation is not successful. A lawyer can provide you with independent legal advice, which is a key part of the mediation process.
Arbitration is essentially a “private court”, where you and your spouse agree that a neutral third-party will make a decision for you. The parties must sign an Arbitration Agreement setting out the issues to be decided by the arbitrator. Arbitrators are trained by the Ministry of the Attorney General and follow certain rules including screening participants. Unlike court, the process is confidential, can be tailored to your situation, and can be faster. Like court, the decision is still binding. It can be filed with the court for enforcement. However, unlike court, the arbitrator is paid by the parties which is an added cost.
In court, a judge may make both "interim" and final decisions for you at Motions and Trials. There are also "Conferences" and opportunities to settle without going to a trial. In family court, there are many steps which must be followed, including timelines, and there are documents that must be filed at different points. These are defined by the Family Law Rules. It is a public process with a public record. We generally advise that clients exhaust all alternative dispute resolution methods before going to court.