Insights & Articles
Family Law Processes: You Have Options
The breakup (or breakdown) of intimate relationships presents unique challenges with respect not only to the resulting emotional consequences, but also the legal and logistical. During separation, when it seems an overwhelming number of decisions must be made, no decision is more important than determining the process by which a matter will proceed to resolution. Certain circumstances require aggressive advocacy and the utilization of the range of Orders available from the Courts. In many situations, however, a family is better served by using a more private, informal and timely resolution process. No two family law cases are the same, except and apart from the need for specialized legal advice in selecting the process best suited to the situation.
It is also noteworthy that separation involves a myriad of issues, many of which are not strictly ‘legal’ in nature, but all of which must be fully addressed and resolved. Family law specialists are uniquely positioned to assist not only in selecting an appropriate process, but also act as a ‘hub’, connecting and communicating with other professionals that may be of assistance, including among others, parenting coordinators, mediators, social workers, accountants and/or realtors.
In recent years, alternative methods of dispute resolution have gained popularity amongst family law lawyers and separating couples alike. An individual’s experience can be controlled with respect to cost, time and result if the appropriate process is chosen in the beginning. As a result, it is crucial that separating spouses obtain legal advice regarding which process best suits their particular needs. Some of the most common process options are highlighted below, however it should be noted that these options are by no means mutually exclusive, and more than one can be employed to resolve various issues in any given matter.
1. Private Negotiation and Settlement Meetings
In many cases, private negotiation through counsel is effective in resolving all outstanding issues between parties.
Private negotiation generally involves both parties retaining counsel, providing full and complete disclosure, receiving thorough legal advice, and preparing offers to settle. In the event that negotiation between counsel alone does not lead to a resolution, it is common for counsel and both parties to attend a ‘4-Way Meeting’, during which negotiations continue in the hopes of reaching a mutually satisfactory settlement.
Mediation is a private process involving a neutral third party mediator who listens to both parties’ views and objectives regarding all or some remaining issues, and assists the parties in coming to their own solutions. Mediation can take place with or without the attendance of counsel; over a series of short meetings or full days; and can deal with all or only specific outstanding issues. Regardless of how the process is shaped, however, both parties are strongly encouraged to obtain qualified independent legal advice. In the event that mediation is chosen, it is crucial that an appropriate mediator be retained. Family law is an extremely specialized field, and mediators are currently relatively unregulated. As such it is necessary to ensure that the chosen mediator has significant experience and specialized training in family law and mediation in particular.
It is common for parties opting to mediate to sign a Mediation/Arbitration Agreement. This means that, in the event mediation is ‘unsuccessful’, the parties agree to submit the matter to arbitration. As such, a full ‘hearing’ of the matter is conducted, following which a final decision is written by the arbitrator.
Pursuant to the Ontario Arbitration Act, an arbitrator’s decision is binding in the same manner as a Court Order. Mediation/Arbitration often appeals to parties due to its private nature and the timely way in which it can be undertaken.
4. Collaborative Law
Collaborative law is a process founded on the principles of transparency and open communication. In the collaborative process, each spouse retains a collaboratively trained lawyer, and the parties and counsel work together to resolve all issues without recourse to the Court. The collaborative process often involves retaining other collaboratively trained professionals, including social workers and financial specialists to deal with both legal and non-legal issues that arise.
Given its inherent delays and cost and its public and adversarial nature, Court is increasingly the process of last resort.
However, in the event that the particular circumstances of a matter require Court intervention, it can be an appropriate and efficient way to move a matter forward (this if often so where urgent issues exist related to child care or abuse, or the preservation of assets which are being dissipated). In the event that a Court Application is commenced, there are several legislated steps involved in moving a matter towards trial, including the First Appearance, a Case Conference and/or Settlement Conference, and interim motions in the event that an issue arises which needs to be resolved prior to trial.
At the best of times, separation and divorce is an exceptionally difficult emotional, financial and social time in a person’s life. However, given the various procedural options available, you have the opportunity to design a process which best addresses your own individual needs and circumstances. It is our strong recommendation that you carefully consider the above noted options and seek the expert advice of a family law specialist in determining which is most appropriate in your particular situation. It is important that you have a say in the method by which you proceed, and feel a sense of control over the process.