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Recently, after advising a client on the amount of money that he owed his former spouse by way of an equalization payment, he responded with a question: 'is this negotiable?'

In truth everything is negotiable in family law. Parties can agree to almost any arrangement between them, write it out in an agreement and sign on the dotted line. Whether you can force someone to comply with this kind of agreement if he or she later has a change of heart is another matter for another blog post.

However, for parties who are far from agreeing to anything, negotiation is a major factor in reaching settlement otherwise inevitably the matter will be headed for court. And, if the baseline for negotiation is what the court might order, then certainly, some subjects are more open to negotiation and compromise than others.

Essentially, whether something is negotiable in family law depends a great deal on whether or not the issue in question is governed by specific rules and regulations that are legislated, or whether the legislation (if any) concerning the issue, provides a court with a lot of discretion as to how to decide the issue. The former generally provides a fairly fixed result that does not lend itself to negotiation. If it is the latter scenario, then a lawyer must spend time researching past decisions to see if he or she can discern a pattern of judgment that matches the facts of the current client's case. This is the only way a lawyer can provide the client with some kind of barometer to gauge how the matter would be decided in court. Even then, strange things can happen when parties proceed to court, and so a determinative outcome is very difficult to predict. These latter scenarios then attract a great deal more negotiation and compromise to avoid going to court.

So, if we think about the 'negotiability' of an issue as a kind of spectrum, here is where the major issues of a separation would fall on such a spectrum.

Almost No Room for Negotiation

Issues such as child support, and, to a somewhat lesser extent, the equalization of net family property, are probably the least negotiable agenda items in a separation. Regular child support is usually not up for debate, as it is generally based on the table amounts provided for in the Child Support Guidelines.

Likewise In Ontario, we have very specific laws that provide directions as to what constitutes net family property and how it should be equalized between spouses – though the equalization of net family property can actually provide grounds for negotiation where the parties disagree about the nature and value of specific debts or assets, and need to compromise in this regard.

Somewhat Negotiable

Probably mid-negotiation spectrum lie the issues of spousal support, custody and access of any children of the relationship. Although the Spousal Support Advisory Guidelines do provide a more concrete idea to parties and lawyers as to the range and duration of support that a court may award, they are not legislation. Spousal support remains a highly discretionary area of family law in the areas of quantity, duration and even entitlement.

Custody and access are also discretionary issues as anyone can apply for both concerning a child in Ontario and although orders for joint custody are generally the norm, sole custody is still regularly awarded in Ontario courts. Of course although some access arrangements have proven tried and true over the years, alternative schedules negotiated between parents, grandparents and other guardians are myriad.

Totally Up for Negotiation

Finally at the far end of our negotiability spectrum lie claims in unjust enrichment and resulting trust. Used most often by unmarried couples seeking a share of the other spouse's property, very little concerning these causes of action is subject to legislation. These are in fact claims made in equity, not the common law, and really are supposed to be subject to a case by case analysis. These kinds of claims are potentially the most 'negotiable' as the only way to determine how they will ultimately be decided is to proceed before a court of law.

Of course there are exceptions to all of the above, and before proceeding with a decision concerning your family matter, it is always advisable to speak with a family law lawyer.

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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