Approaches to Resolving Your Divorce and Separation in Ontario

Negotiation Between Lawyers

The most common approach to resolving family law issues is direct negotiation between the parties’ lawyers. Each party retains their own lawyer, and the lawyers exchange correspondence, financial disclosure, and settlement proposals on their clients’ behalf. This approach allows each party to have independent legal advice throughout the process and is suitable for many separating couples.

Mediation

Mediation involves a neutral third party — the mediator — who helps the spouses communicate and work toward agreement. The mediator does not decide issues but facilitates the discussion. Mediation can be used to resolve all or some of the issues in a separation. It is typically faster and less expensive than litigation and gives both parties more control over the outcome.

Open vs. Closed Mediation

In open mediation, everything discussed can be disclosed to the court if mediation fails. In closed (without prejudice) mediation, discussions are confidential and cannot be used in court. Closed mediation is more commonly used as it encourages candid discussion.

Collaborative Family Law

In collaborative law, each party retains a specially trained collaborative lawyer. Everyone signs a participation agreement committing to resolve the matter without court. Meetings are held with both lawyers and both clients present, often supported by other professionals such as a financial neutral and a divorce coach. If the process breaks down, both lawyers must withdraw and new lawyers are retained for litigation.

Arbitration

Arbitration is a private process where both parties agree to have a neutral arbitrator (often a retired judge or experienced family lawyer) decide the issues in dispute. Unlike mediation, the arbitrator makes binding decisions. Arbitration can be faster than court and offers more scheduling flexibility.

Litigation

Litigation is the court-based process for resolving disputes. It is generally the most expensive and time-consuming approach, but it may be necessary when the other party is uncooperative, when there are concerns about safety or financial misconduct, or when other methods have failed. An Ontario Superior Court judge ultimately decides unresolved issues at trial.

Choosing the Right Approach

The best approach depends on several factors, including the level of conflict and communication between the parties, the complexity of property and financial issues, whether there are children and the nature of parenting disputes, concerns about power imbalances or domestic violence, and the cost and time considerations of each party.

Can Approaches Be Combined?

Yes. Many separating couples use a combination of approaches. For example, spouses might engage in mediation to resolve parenting issues and then use lawyer negotiation to finalize property division. Some issues may be resolved by agreement and others may require a court order. The goal is always to find the most efficient and least harmful path forward for all involved.

Summary of Dispute Resolution Options

• Lawyer negotiation: suitable for most separations; each party has independent counsel.
• Mediation: a neutral third party facilitates agreement; flexible and cost-effective.
• Collaborative law: structured process with a commitment to stay out of court.
• Arbitration: private binding decision by a neutral arbitrator.
• Litigation: court-based process; most appropriate when other methods have failed.