Understanding The Process
Negotiation of a Separation Agreement
When married or common law spouses separate there are multiple issues that must be resolved. These issues may include, but are not limited to, parenting (decision-making responsibility and parenting schedule), child support, spousal support, and property division.
One method of resolving these issues is through negotiation. The final terms agreed upon between former spouses are detailed in a document referred to as a Separation Agreement.
It is critical for individuals to seek legal advice prior to agreeing to terms of settlement and the execution of a Separation Agreement. An Agreement is negotiated in the “shadow of the law”. That is, the parties negotiate a resolution with an understanding of their legal rights, obligations, entitlements, and how the issues would likely be resolved should the matter be litigated. As such, a lawyer provides an individual with an understanding of their rights, obligations and entitlements upon separation. A lawyer may also assist you in understanding what to expect during the negotiation of an Agreement and the steps necessary to resolve all issues arising out of your separation.
The negotiation of a Separation Agreement will likely involve the exchange of financial disclosure and Financial Statements. This is an important stage of the process, as it provides your legal counsel with the ability to have a full understanding of your circumstances during your relationship and upon separation. Upon the exchange of full and complete financial disclosure, your lawyer will be able to protect your interests and provide you with accurate legal advice with respect to each of the financial issues, such as support payments and property division.
In some cases, the negotiation of a Separation Agreement may also include the involvement of other professionals, such as therapists, parenting coordinators, accountants, and financial advisors.
Once parties have reached terms of settlement with a full understanding of the nature and consequences of such settlement, these terms are incorporated into a Separation Agreement. A properly negotiated and executed Separation Agreement is a domestic contract, and as such, is enforceable between the parties.
Mediation is a voluntary process whereby spouses will seek the assistance of a knowledgeable and qualified neutral third party to assist in resolving the issues arising as a result of separation.
Mediation is a form of alternative dispute resolution that is often more expedient and cost effective than litigation. Both parties must enter into the process voluntarily. However, mediation is not appropriate in all situations, especially where there is a power imbalance between the parties. To determine whether mediation is an appropriate method of resolving the outstanding issues between parties, it is critical that the mediator screen the parties.
Depending on the complexity of the issues arising from separation as well as the parties’ resources, they may choose to attend mediation with counsel or on their own. It is important to understand that a mediator cannot provide independent legal advice, and, therefore, it is always wise to consult with a lawyer before confirming terms of settlement reached through the mediation process.
Mediation can be initiated at almost any stage in the process. Although it is common for mediation to occur before litigation, parties will sometimes choose to mediate after litigation has begun.
Mediation may be either open or closed. The difference between open and closed mediation is significant and pertains to whether the discussions and information disclosed during the process may be admissible in Court. In open mediation, the information disclosed and discussions that occur may be admissible, while in closed mediation such information and discussions are not admissible. To this end, closed mediation is more common as parties are more open and willing to disclose information that is pertinent to resolving the issues between them.
Prior to the commencement of mediation, the parties will execute a Mediation Agreement, which sets out the process, costs, issues to be addressed, and whether the mediation is open or closed.
Arbitration is another method of alternative dispute resolution that allows former spouses to resolve all issues arising out of their separation rather than litigating their matter. An arbitrator is empowered by legislation to make binding decisions related to the issues to be resolved as a result of the dissolution of a marriage or breakdown of a common law relationship.
Similar to mediation, arbitration is a process that must be voluntarily agreed to by the parties. To that end, the parties must be screened to ensure that their matter is appropriate for arbitration. Prior to the commencement of arbitration, the parties will execute an Arbitration Agreement, which sets out the parties involved, the arbitrator, the location, and date of the arbitration, timelines for the exchange of materials, and the issues to be resolved.
However, contrary to mediation, once the parties have agreed to arbitrate their matter, the parties are bound to engage in the process as they have waived their right to litigate.
Arbitration closely resembles that of an actual trial but often provides parties with a more cost-effective and expedient method of resolving their matter in comparison to litigation.
The decision of the Arbitrator on each of the issues agreed to be arbitrated shall be incorporated into an Arbitration Award binding both parties and is enforceable by a court of law if it complies with section 59.6 of Ontario’s Family Law Act.
Mediation-Arbitration or “Med/Arb”
Mediation-Arbitration (commonly referred to as “Med/Arb”) is a form of alternative dispute resolution. The parties will attempt to first mediate their matter. If mediation is unsuccessful, the parties will proceed to arbitration where a neutral third party will decide the issues and make an Award which is binding on the parties and enforceable by a Court.
Prior to engaging in the mediation-arbitration, the parties will execute a Mediation-Arbitration Agreement stipulating the parties, the mediator, the arbitrator, the structure of the process, timelines, and the issues to be resolved. The parties must also be screened for domestic violence and power imbalances to ensure that this process is appropriate.
This form of alternative dispute resolution incentivizes the parties to attempt to resolve the issues at mediation based on the understanding that if they fail to do so, a decision will have to be made by an impartial third-party.
Mediation/Arbitration may be less expensive than litigation and also provides a more expedient method of resolving any outstanding issues between parties.
Court / Litigation
In cases where one party is unwilling to negotiate terms of settlement, takes an unreasonable position in negotiation, or a negotiation is unsuccessful, parties may resort to resolving their matter through litigation. This process is commenced through the drafting of an Application and accompanying materials, which are thereafter issued, served on the other party and filed with the Court. The responding party will then have thirty days (in most cases) to serve and file their Answer and accompanying materials.
If an Answer is not served and filed within the specified timeline, the responding party’s interests may be prejudiced. Furthermore, should the other party fail to serve and file an Answer and accompanying documentation, a Court will make a decision based solely on the information provided by the Applicant. For this reason, it is crucial for parties to respond within the proper timelines and seek the assistance of a lawyer, if needed, to assist in the drafting of responding materials.
In Ontario, family matters are case managed. This means that all parties must attend at certain mandatory appearances before the matter may proceed to trial. Parties are required to attend a Case Conference, Settlement Conference, and Trial Management Conference prior to attending trial. These Conferences provide the parties with an opportunity to canvass settlement with the insight of a judge. A court will assist the parties in striving towards settlement by making procedural orders and providing their opinion as to the outcome of the issues based on the current state of the law.
In addition to the Conferences stated above and a trial, your matter may also involve interim motions, such as a motion for a temporary parenting schedule, temporary spousal support, or even the sale of the matrimonial home. At a motion, the Court will rely on affidavit material and the parties will not be required to testify.
In the event that your matter does not resolve at any of the above-mentioned steps or through negotiation, a trial will be scheduled to determine any and all outstanding issues. Depending on the issues to be determined, a trial can range between one (1) day and several weeks.
At a trial the parties will often provide their evidence viva voce (orally) and be cross-examined on such evidence by the other party. Parties will also have the opportunity to call experts or other third parties to provide evidence in support of their position. At the conclusion of a trial, the judge will make a Final Order on the issues and may award costs against the unsuccessful party.