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Since at least 1983, Ontario family courts have encouraged and upheld out-of-court processes wherever possible.

Finally, in 2021, the federal Divorce Act and the Ontario Children’s Law Reform Act were amended to encourage separating couples to try alternative dispute resolution before they start a court action. Mediation is one of the dispute-resolution techniques that they specifically ask you to consider. Here’s what you need to know.

What is mediation?

  • To end your marriage, you usually need either a court order or a separation agreement.  One of the fastest, least expensive ways to get a separation agreement is through something called mediation.  It’s just a method of talking together that can be more efficient than other methods.
  • Its efficiency comes from
    • (a) everybody being in the same room sharing the costs;
    • (b) the mediator having legal knowledge and experience of family law; and
    • (c) the mediator’s special training and experience in neutral conflict resolution.

Is it voluntary?

  • Yes.  You cannot be forced to enter mediation.

How much does family mediation cost?

  • Usually spouses divide the payment 50-50, but other arrangements are possible.
  • You will each pay a fee for the intake consultation.
  • You will then each pay a retainer fee, which is standard arrangement in law firms, before work gets started.
  • As we go forward, you will each be billed half of the time I spend on your file, plus HST.
  • The amount of time needed always depends upon how many legal issues there are and how simple or complex the facts are.

How long does it take?

  • The amount of time needed always depends upon how simple or complex the facts are of your case.
  • I usually book sessions of 3 hours each.
  • On average, a mediation dealing with separation usually takes 3-5 sessions.
  • Usually, you each have to do a net worth statement (assets minus liabilities) backed up with bank statements. That financial disclosure often takes the most time.

Do you provide legal advice?

  • I am a licensed lawyer and an officer of the court, but in my capacity as a mediator, I only give legal information. I do not advise the clients. I remain impartial before, during, and after mediation.
  • If you wish, you can hire a separate family lawyer to provide a review of the proposed agreement.
  • This is called Independent Legal Advice. The Ontario Family Law Act guarantees everyone in family mediation has an absolute right to a lawyer’s review.

Do I need to hire a separate lawyer to draft the separation agreement?

  • As a mediator who is also licensed to practise law, I can draft your separation agreement.
  • Some mediators are not licensed lawyers – when you hire a mediator who is NOT also a licensed lawyer, they usually can NOT prepare your separation agreement. This can slow you down.
  • Hiring a mediator who is also able to draft your agreement gives you a faster, clearer pathway to your end goal, a separation agreement.

What if I can do better in court?

  • This is something that most people worry about, but the truth is that most cases that start in court end up being decided outside of court anyway using some kind of alternative dispute resolution.

What if my spouse is a better negotiator than I am?

  • In almost every case, one spouse is a better negotiator than the other.
  • There are many factors in the mediation process to help equalize bargaining power.

Is the agreement I reach with my spouse legally enforceable?

  • You can literally take it to the bank.
  • If you just want the portions dealing with support to be handled by the Family Responsibility Office (FRO), there is a process for FRO to treat your agreement as though it were a court order.
  • In addition, a separation agreement which meets the requirements for a domestic contract as spelled out by the Ontario Family Law Act carries the weight of the law. You can have it enforced.
  • You can use mediation before you consider starting a court case. And you can also use it once you have started a case in court.
  • In cases which start in court but end in mediation, your agreement can even be placed in front of a judge with a request to convert it into a court order, without you even having to appear in court again.

Are the children involved?

  • No, children are usually not involved in the mediation meetings.
  • If you and your spouse have a deeper disagreement about parenting the children, there are ways of addressing this by having a specialist — who is also committed to resolution outside of court — work with you and the children. These specialists are called parenting coordinators.

If I don’t like what happened during mediation, can I use that in court?

  • The mediation process is confidential. What happens in mediation cannot be used against each other. This fact encourages a full and frank discussion and helps you get to an agreement.
  • If you don’t get an agreement, the law considers it important that you can trust the secrecy of the process.
  • That ensures that you can put your honest effort into settling, without ever worrying that your good faith will be used against you. It’s a win-win.

Can I terminate the mediation process?

  • Yes. If it doesn’t work for you, you can end it at any time.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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