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Following up on our post from last week, we'd like to talk a little bit more about when it makes sense to try negotiating a resolution in a separation or divorce outside of litigation, and when it doesn't.

Generally when a client comes to see me about a separation, I listen to his or her story and explain in a general sense what his or her rights are in accordance with family law in Ontario. Once this is accomplished, the next big thing that has to be decided is how the client wishes to proceed with regards to the separation.

Many people who have not had much or any involvement in family law think that everything is done through the courts. This is simply not true; separations and all the issues that stem from them can be resolved without the involvement of courts except for the final step of obtaining a divorce if the parties are married.

Negotiated resolutions usually occur under the following conditions:

  1. Both parties want to separate;
  2. Both parties are willing to provide financial disclosure to each other in a timely manner;
  3. If there are children, both parties are willing to work together to agree on a custody and access arrangement that works best for the children; and
  4. If one party owes the other child or spousal support, that party is willing to negotiate a fair deal.

Litigated resolutions usually occur when any of the above factors is absent. Often clients fear the litigation route and associate it with high costs and delay. However, what every family law client needs to understand is that at a certain point, when one party has ceased to cooperate, negotiated settlements can be as or more costly than an efficiently litigated case.

Endless letters, phone calls and the time spent not receiving child and or spousal support can add up. Proceeds of sale from sold matrimonial homes can sit in the accounts of real estate lawyers for months, held up because the parties cannot agree on an issue concerning the equalization of their net family property.

Remember, a lawyer cannot make a party do anything. Only a court can. If a party refuses to provide disclosure of his or her assets, pay child support or agree on the school your child attends, only a court can make him or her do so. Usually in these circumstances, once litigation is commenced, the other party will cooperate and a settlement can be reached. Family law trials are rare and there are many procedural steps in the litigation process before a trial can take place, with each step aimed at settlement.

Although negotiated resolutions are preferable, they may not be possible and it is important to recognize this if you want your matter to be resolved in the most efficient way.

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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