During a separation, there are a number of legal matters a couple must deal with. These range anywhere from spousal support, child support, family property etc. There are two methods in resolving your family law dispute: courts or alternative dispute resolution (ADR). The Divorce Act, the Family Law Act, the Children’s Law Reform Act and the Child and Family Services Act, contain much of the law that applies to families in addition to case law judgements that can be useful to some.
When choosing whether to resolve your family law dispute in the court or by ADR, it is important to analyze your situation and choose the method that will be effective for you and your circumstances.
Resolving your family law dispute in the courts is used in dire circumstances where an urgent matter needs to be resolved, the partners cannot reach an agreement, abuse/violence is involved and bulling or threats are made.
The Family Law Rules govern the way an individual should proceed with their case in Ontario. Rule 8 sets out how to initiate a case and Rule 10 sets out how to respond to a case started against you. There is a rule for every step of a court proceeding that is enforced on everyone engaging in using the courts to resolve their family law dispute. Each individual is given a chance to receive and respond to the requests of the court and a judge will be able to decide the case based on evidence and the law. The judge acts in an impartial and neutral manner where he/she will only decide on the issues brought before them. Therefore, it is important to talk to a lawyer and have legal representation during a court proceeding to ensure you are aware of your rights and to use their expertise to obtain them. Otherwise, you risk having to pay the other party’s legal fees against you.
When commencing a family law case, the applicant must complete an application telling the court what they are requesting. This can be anything from custody of a child, child or spousal support, etc. The application outlines the history of your family/case and facts that will support your claim. Depending on the information provided in the application, the court may order the parties to attend a Mandatory Information Program that provides information about separation, the impact it has on children, ADR methods, legal issues and court proceedings. The applicant must also provide a copy of the application to the respondent. This is called service. There are specific timelines to follow when using a court proceedings because once the deadline is past it becomes extremely difficult to continue with your claim.
There are many pros and cons when proceeding with the courts to resolve your family law dispute. Some of the pros, as discussed above, include not reaching an agreement, requiring an enforceable agreement made by the judge, abuse/violence cases etc. The cons of continuing with a court proceeding include the cost, the time it takes to get a court date before a judge, an unpredictable outcome and the stress that tags along.
Before deciding that going to court for your family law matter is right for you, it is important to talk to a lawyer. A lawyer has the expertise to effectively guide and represent you. They can even help you settle a dispute before going to court and outline a method that is best for you. Going to trial can be a very expensive and stressful period for some, a lawyer can intervene in the middle of the court process and help reach a settlement before trial and/or represent you during trial.
Alternative Dispute Resolution (ADR)
ADR is a method whereby informal arrangements can be made without the use of litigation. The couple can negotiate or work with a mediator or arbitrator. There are different methods under ADR to resolve a dispute. But note that this is a choice and neither party can be forced into using ADR. If you do choose to use ADR it is important to contact a lawyer because you risk losing rights that you are entitled to if you do not.
There are many benefits to using ADR rather than going to court. The individuals have more control over the matter and can express their concerns and decisions, it is much faster and cheaper than court, and is less stressful. ADR benefits those who can be open and honest with their partner and can work out the issues that need to be resolved. But as discussed above, it does not suit all family law disputes. If your partner chooses not to listen to you, or you two cannot cooperate, abuse/violence is involved, bulling/threats are involved or your partner has more power than you; can all be reasons why to resolve your dispute in the courts.
There are four types of ADR- negotiation, mediation, arbitration and collaborate family law. We will briefly explore these methods.
Negotiation is a common form of ADR which provides for an informal setting where you and your partner talk to reach an agreement. You have the choice of retaining the assistance of lawyers to speak on your behalf and reach a spoken agreement. This is then transcribed into a written document, signed by the couple. It is important to transcribe the spoken agreement because it is common to move from negotiation to court and a spoken agreement will not be enforceable.
When engaging in mediation, the couple seeks the assistance of a mediator who is trained to deal with conflicts. Mediators are usually social workers, psychologists or lawyers. They help both partners talk to each other to reach an agreement in an impartial manner. They can suggest different methods of resolving the dispute and it is up to the individuals whether or not to use their advice. The assistance of a lawyer is very beneficial because usually, the lawyer does not accompany you to the mediation. Therefore, it is essential to know what your rights and obligations are before going into the mediation so that you effectively know how to reach a fair agreement.
If you are not pleased with how the mediation went, you have the autonomy to pursue other methods of resolving your dispute. However, should you and your partner reach an agreement during the mediation, it is imperative to show the written agreement to your lawyer before signing it. This is a common mistake made by individuals during this proceeding because once you have signed the agreement you have consented to all the terms present and the other party can effectively enforce them against you.
During arbitration, the couple hires an arbitrator and proceeds in a method similar to court, however an arbitrator cannot grant divorce or an annulment. They can decide on custody, support, access and how to divide any family property. It is imperative to know your rights when dealing with an arbitrator, because like the courts, an arbitrator can only decide on issues that you ask them or bring to their attention. If you do not, you risk losing your rights.
Retaining the assistance of a lawyer is very important when engaging in arbitration. While arbitration may be designed to be non-binding, in most cases the arbitrator’s decisions must be obeyed and they can be enforced.
- Collaborative Family Law
This is a new form of ADR, where the individuals and their lawyers work together to resolve the dispute. This method is faster and cheaper than going to court and is a different way for lawyers to work because it is informal. The individuals can effectively use this method to make children a priority, use the expertise of their lawyers, and reach a mutually acceptable agreement. This method only works effectively if the couple is willing to reach an agreement and respect each other. Usually, only those who can hire a lawyer should engage in this type of ADR.
If an agreement is not reached during Collaborative Family Law, then the individuals must proceed to court with new lawyers to represent them. Note that Legal Aid Ontario will not provide a lawyer for collaborative family law.
How we can help
As displayed by the different methods to resolve your family law dispute, a lawyer is not always required during a proceeding. However, in family law cases, it is very important and beneficial to get the assistance of a lawyer because as a party to the proceeding, this is very emotional and stressful. It is common for a party to have cloudy judgement because of the emotional suffering that occurs as a result of engaging in any of the above named resolution methods.
A lawyer can act as a good representative to effectively argue and negotiate the best possible agreement/settlement for you and your interest. At A. Princewill Law Firm, we have the expertise, experience and knowledge to outline your rights and obligations for you. We will always support your best interests and our understanding of these processes makes it easier for us to represent everything you want and interests that you may not even be aware of. Our expertise will successfully guide you to a practical and satisfying agreement. We will walk you through the best approach for you and your situation. Contact us to schedule a consultation to discuss your situation.