FAQs
These FAQs provide general information about family law processes. For advice specific to your situation, please contact us.
What is Litigation?
“Litigation” means going to Court and asking a Judge to decide your case. In a Court case, your divorce lawyer fights for your rights and asks the Court to make an Order giving you what you need.
To begin an Ontario Court case, your lawyer prepares a document called an “Application”, describing the specific legal “relief” you are claiming – in other words, everything you are asking the Judge to order. The Application also sets out all the facts upon which you are relying in support of your claim.
The types of orders people ask for in their Applications generally pertain to custody, access, child support, spousal support, property division, and possession of the matrimonial home, among other things.
After filing the Application, people typically appear in Court several times. During each of these Court appearances, the Judge is presented with each party’s documents and arguments.
Depending on what kind of Court appearance you are scheduled for, the Judge will either try to help the parties resolve the case informally, make procedural Orders (for example, forcing someone to produce financial documentation), or make temporary and Final Orders or Judgments concerning the main issues in dispute.
The main stages of Litigation in Toronto (as in the rest of Ontario) are case conferences, motions, settlement conferences, trial management conferences, and trial. Briefs, affidavits, and supporting evidence are filed at each stage of the proceeding.
Needless to say, Litigation is complicated, expensive, adversarial, and emotionally draining. This brief description is very basic and only scratches the surface. Sometimes it’s the best option, but sometimes it’s not. It depends on the circumstances.
For more information on the Ontario Court process and to learn more about the legal issues you’ll need to resolve, visit the comprehensive website of the Ministry of the Attorney General.
What is Mediation?
Mediation is a dispute resolution process in which a neutral, impartial third party (the mediator) works with two people in conflict, in order to help them negotiate a fair resolution of the legal issues resulting from the breakdown of their marriage.
Mediation FAQ’s
Is mediation the same as couples counseling?
No. In couples counseling, the goal is to work on the relationship so that the couple can stay together. In mediation, the goal is to bring closure to a separation by finalizing an agreement on issues like parenting, support, and property division.
At what stage of separation is mediation appropriate?
Mediation can work at any stage. Many separating couples choose mediation as a first step, but others choose to work with a mediator because they have grown dissatisfied with (or can no longer afford) the legal/court system, and are looking for an alternative process which they feel may better meet their needs and bring them closure more quickly
Is it true that mediation only works for “amicable” divorces?
Not at all. Many medium-to-high conflict families benefit from using mediation to resolve their differences. As long as both spouses want the conflict to end, feel safe in the process, are prepared to make full financial disclosure, and are open, in theory, to the idea of making an agreement with terms within the realm of what is legally reasonable, mediation can be a very effective process for any separating couple.
I’m worried that if mediation fails and we wind up in court, my ex may use the things I’ve said in mediation against me.
In an “open” mediation, this is a legitimate concern, but in a “closed” mediation process, nothing that is said in mediation may be used by either party in subsequent court proceedings. Generally, parties sign a contract with the mediator at the beginning of the mediation process; parties who want to make sure that nothing said in mediation can be used against them should insist that the contract state that the mediation is “closed”.
What are the advantages of mediation?
Mediation is generally far less expensive than a traditional legal process, and the mediator’s fee is shared equally between the parties. Mediation allows people to negotiate their own agreements, instead of having outcomes imposed on them by judges who do not really know their families. Mediation allows people to resolve their cases quickly and achieve closure, so that they can move on with their lives. Mediation is private, non-adversarial, dignified, and provides a venue for honest, productive, results-oriented conversations about what is best for the family. Mediation is confidential, and in closed mediation, participants don’t need to worry that what they say may be used against them in court.
What are the disadvantages of mediation? Is it ever inappropriate?
If a spouse is not really interested in settling, refuses to make full financial disclosure, or is being highly unreasonable, there is a risk that the time and money spent on mediation may be wasted. In rare cases, some people use mediation as a delay tactic where they have no intention of settling.
What is Negotiation?
In negotiations, your family lawyer still advocates forcefully for your rights, but the case doesn’t necessarily go to Court. Often, your lawyer and your ex’s lawyer will negotiate through correspondence, the exchange of documents, telephone conferences, and four-way meetings.
If, through the negotiation process, you and your ex manage to agree on a mutually acceptable resolution of all issues, a final settlement can be reached and a Separation Agreement can be drawn up. Once it’s signed by you, your ex, and both lawyers, the Separation Agreement becomes a legally binding contract setting out everything you and your former spouse have agreed to.
Sometimes negotiations fall apart and the parties go to Court. Other times, parties who have had a few Court appearances settle their cases through negotiations. Negotiation and Litigation are often used concurrently or consecutively; parties often go back and forth between the processes.
What is Collaborative Family Law?
Collaborative Family Law is a special type of negotiation which follows a specific set of guidelines. Parties and their specially trained collaborative family lawyers sign a Participation Agreement in which they promise to make full financial disclosure, co-operate fully with one another, and use all means at their disposal to settle the case respectfully and in the best interests of all family members. In this Agreement, they also agree not to go to Court.
If one party starts a Court case, contrary to the Participation Agreement, both lawyers must be removed from the case and the parties must hire new lawyers. This rule creates an incentive for parties not to “throw the baby out with the bathwater” – most people would think twice about going to Court after having invested so much time and energy in settling the case and trying to maintain a respectful relationship with their former spouse.
In Collaborative Family Law, negotiations occur during a series of four-way meetings. In accordance with the Participation Agreement, both parties must make full financial disclosure and conduct themselves respectfully towards one another. The emphasis is on creating an outcome which is fair to all members of the family, rather than a “win/lose” outcome, which typically occurs in Litigation.
It is also hoped that through this process, both former spouses can develop a workable, respectful co-parenting relationship so that they can raise their children together as peacefully as possible – something all children deserve. As with negotiated settlements, the end result of Collaborative Family Law is a Separation Agreement.