Wednesday, August 19, 2015

The trouble with Ashley Madison....what next?

The last two months or so have been a stressful time for many users of Ashley Madison. Once hackers claimed they had accessed the personal information of many users and threatened to expose that information on the World Wide Web, many wondered what that would mean for their marriages and other long-term relationships.

As of last night, the level of stress rose for many - the hackers claim they have actually posted the information on the web, for public access and consumption. What now, you may ask?

There are many misconceptions out there about the impact of infidelity on claims in a divorce or a cohabitation, common-law relationship (in Canada).

Canada has a no-fault divorce system. That being said, there remain three basis on which a spouse can claim an actual divorce - a one-year separation, infidelity and cruelty. The last two are pleaded very infrequently these days, largely for technical reasons and given most divorces are not granted until a year after the separation in any event.  The impact of your conduct (if you have been unfaithful) or your spouse's conduct (if they have been unfaithful) varies from case to case. It also depends on the nature of the claim being made and the nature of the conduct.

* If your marriage or relationship has or is about to end because of information the hackers may have posted or if you are concerned that the information may come out (but has not yet come out), we strongly encourage you to get legal advice on the impact of this information on your case.

* If you are a spouse who has been confronted with information flowing out of the Ashley Madison hack, we encourage you to seek legal advice as well.

Friday, May 15, 2015

Should I negotiate with my spouse, without a lawyer?

Separation is often a very emotional journey - whether you are the one who triggered it or whether you are at the receiving end of the news, there are so many issues to consider, so many new concepts to understand (including in the area of family law) that the circumstances can quickly become overwhelming.

The answer to the question posted in the title of this post should really be considered in light of the opening paragraph. Ask yourself this:

1. are you emotionally strong enough to sit across from your spouse and negotiate the terms of your separation? Is your spouse emotionally strong enough so that any "deal" you strike would be viewed by an outsider as a fair one?

2. do you understand the law as it applies to your separation? If you think that to deal with property rights on separation, "we divide everything in half", then you do not understand this area of the law. Do you understand the difference between the law as it applies to married/separating spouses as opposed to common-law/separating spouses? For example, are you aware of the concept of "joint family enterprise"? Do you know what possessory rights are? Do you understand the concept of mobility? Does your spouse?

3.  are you sure that "all the chips are on the table" for the purposes of your proposed negotiations, meaning, that you are truly aware of your spouse's earnings, assets and debts? Do you truly know what they "have"? Did you and your spouse exchange full disclosure?

THE POINT: there is nothing preventing you from negotiating directly with your spouse. Whether that is a good idea is another issue altogether and depends on the circumstances of your case. Likely not the clean, direct answer you were looking for but there it is - would you consider asking your friend to remove your appendix? Well, the answer depends on the circumstances. If they are a doctor, you might. If they are a retired doctor who last practiced 15 years ago, you might not. If they are a gardener, you might not. If you are exceedingly stressed, you might not be in any shape to make a reasoned decision about any alternative treatment for your acute appendix so an emergency doctor should be your medical provider of choice. I think you "get our point".

Seek legal advice about legal issues, at least by way of consultation. Do not bargain your legal rights and obligations until you know what they are. It is important to negotiate on a level playing field, making sure there is no imbalance of power in discussions of any settlement. A solid, fair and lasting deal depends on it.

Thursday, May 14, 2015

Child Support Over 18 (2)

We continue to receive many, many questions relating to support for children over 18 years of age. This is understandable given there continue to be many misconceptions out there about this area of the law.

As we posted in the first post in this series, child support does not automatically end when a child is 18. That is not the law in Ontario and in fact, Canada. While society may view 18-year-olds as adults, family law does not necessarily take that approach when it comes to child support.

There are a variety of circumstances in which a young person over the age of 18 could remain eligible for child support. These vary depending on the circumstances of each particular case so you should present your unique facts to a lawyer and have him or her assess your particular situation.

A young person with special medical needs may remain eligible for child support well after the age of 18, even if they are not attending school but here, whether the claim is made under the Divorce Act or the Family Law Act makes a difference. In this respect, whether the parents of the child were married or not may impact on either parent's ability to make a claim for child support in these circumstances. Again, this area of the law is somewhat technical so you should consult a lawyer to find out how the legislation applies to you.

We have also come across a number of inquiries suggesting the following, common misconception: that mothers always continue to receive child support for a young person over 18 if he/she continues to reside with the mother. That is not always the case. Again, the particular circumstances of the case dictate whether that is true or not. Why is the child continuing to live with the mother? What is this young person doing while continuing to live with the mother? Is he/she attending school? Is he/she working full-time, for example, and living with Mom because it is just cheaper and more convenient? Whether child support continues to be payable depends on the answers to these (and additional) questions.

Very soon, we will be posting some thoughts in response to the following, common question: "can I pay child support directly to my child?".....

Saturday, April 18, 2015

Travel Consent Letter

We receive many questions about Travel Consent Letters and based on them, we understand there are many misconceptions out there about what this document is and who needs it for travel with whom.

Travel Consent Letters are generally prepared when a child or children travel with one parent and without the other. Such situations are not limited to separated or divorced spouses but we will focus on them in this post.

Travel Consent Letters are not a requirement but they do make these travel situations simpler. When an Immigration officer sees a single parent travelling with a child or children alone, a travel letter, signed by the other parent, will go a long way in addressing any concerns about the children's potential safety. While many parents find the preparation of the Travel Letters cumbersome, we ask: "is this not preferable to having to deal with situations where children travel without the other parent's knowledge or may even be abducted?"

What is important to realize is that a Travel Consent letter will not guarantee your leaving the country with your child or children without further questions. Immigration Canada retains the right to investigate the legitimacy of the proposed trip, even if you have a Letter in hand.  That being said, Travel Letters do help and we highly recommend them.

2 other points:

1. we have heard the following before, post-trip: "don't know why I bothered, they did not even ask for the letter" - you may not be asked but our policy is - better safe than sorry - see 2. below

2. we have also heard the following before the trip: "I will just take a risk, they did not ask the last time so I am not going to fuss with this now" - we say again, better safe than sorry - we know of actual instances when parents were turned away at the border because they did not have a Travel Letter and the other parent could not be contacted immediately to verify that the trip was authorized.

Here is a link to some further useful, official information about Travel Consent Letters:

Government of Canada Travel Consent Letter information

Tuesday, April 14, 2015

The child support "grid"...

I recently heard a radio talk show host refer to a "child support grid". I have heard this phrase used in other contexts as well. What does it mean?

The "grid", otherwise known as a "table", is a tool which assists us in calculating the first of the two components of child support, commonly known as the "table amount".

Child support in Canada is generally calculated using both federal and provincial legislation (depending on whether the parents of the child were married or not) called the Child Support Guidelines. This legislation includes a series of tables which set out monthly amounts payable by the parent with whom the child or children in question do not live primarily, in different Provinces and based on different income levels

These tables are sometimes referred to as "grids" because they actually look like grids. On the left hand side of each table, there is a column with incremental income amounts and to the right are corresponding table child support amounts, depending on the number of children involved.

There is a separate table for each Province because the cost of raising children varies from location to location

The child support amounts set out in the grid represent the monthly amount to be paid by the non-residential parent to the primary residential parent, on a monthly and repeating basis - the tables do not provide for an automatic terminating event or date - that is a question which depends on the facts of each particular case.

The amounts provided for in the tables are "net" to the recipient parent. This means that no tax is paid by that parent on the table amount received. Correspondingly, the payor parent does not have an opportunity to deduct these amounts for tax purposes (this is different than the tax treatment of periodic spousal support).

Wednesday, April 8, 2015

Do I need a lawyer to go to Court?

More and more people ask this question, particularly as the costs of living increase and financial pressures on average Ontario families mount.

The simple answer is "no, you do not".  There is no rule which says that only lawyers can present or defend cases in Court.

Courts in Ontario are equipped to deal with people who come before a Judge without a lawyer. Such individuals are referred to as "unrepresented" or "self-represented".

Now let's consider the question from a different perspective and use the following analogy to illustrate the point. What is the answer to the following question: "do I need a doctor to treat my red eye?" The simple answer is you do not - you can certainly treat the problem yourself and you may be able to cure the problem too, after trial-and-error with different remedies at your disposal. On the other hand, if you see a doctor about your red eye, he/she may diagnose the problem with more precision and zero in a lot faster on the treatment, including prescription medication, all leading to a speedy recovery.

Back to our lawyer question: an average person on the street is not trained on what family law legislation says and means, and what case law has provided by way of precedent. Nor is he/she familiar with court administration and the rules related to the conduct of a family law case (and all unrepresented litigants are expected to "play by the same rules" as those who attend with lawyers).

The right lawyer CAN help your case move forward faster and in a more organized way. Most importantly, a lawyer is able to advise you all issues relevant to your circumstances - you may not even be aware of such issues because you lack the legal training.

If you cannot retain a lawyer to act for you then at least invest in a consultation as to your legal rights. It's important. 

Tuesday, April 7, 2015

Telephone and other types of access....

Access between a parent and a child does not have to be limited to physical access, ie: based on a schedule, the child spends time with the parent, during the day, overnight or for a couple of days at a time. Other forms of access are acceptable and in fact, quite common. The goal is meaningful "contact" between a parent and a child - and that may take a variety of forms.

Telephone access is quite common and has been for a long time. Such access can be ad hoc, meaning the child (usually) calls the parent whenever he/she wants. The more usual arrangement is for set times during the week when the parent speaks to the child by phone (time and frequency often depend on the child's age)  - this gives the child structure, certainty and a reasonable expectation when contact with that parent will take place. The other parent's cooperation is required to make this happen - the child has to be close to a phone for the scheduled telephone access. Provisions and schedules for such access are common these days in Court Orders and Separation Agreements.

As technology advances, new forms of access have been introduced and are becoming part of our everyday family law "parlance". Access by Skype and Facetime are two examples. More and more Separation Agreements and Court Order include such access. Both parent and child much have access to the right hardware and software but that is becoming less of an issue these days given the availability of technology in virtually every household.

When considering access for your child, think out of the box of physical access. There are other options as well.

Saturday, April 4, 2015

Parenting Plan

When family law lawyers use this term in Ontario, they are usually talking about a multi-page document which creates a "road-map" for parents on how to deal with their child(ren) and each other after a separation.

A Parenting Plan may be authored by a variety of people. Many Parenting Plans are the result of negotiations between Mom and Dad, with the assistance of lawyers. Other Parenting Plan result from the recommendations by professionals involved, for example, in a custody/access dispute. An assessor under section 30 of the Children's Law Reform Act can be one such person. Mom and Dad might also have met with a mediator to work out the terms of a Parenting Plan and if successful, that document would contain all the agreed-to terms.

Parenting Plans in Ontario can address a whole host of issues relating to children. Here are some examples:

1. who will make decisions about major issues in the children's lives (custody).
2. where the children will live (residence).
3. if the children will live mainly with one parent, much often and when specifically the other parent will spend time with the children (access).
4. whether the parents can move with or without the children (mobility).
5. what the protocol will be if a child requires emergency care when in the care of one parent.
6. what happens when access is missed.
7. what happens if one parent cannot care for the children on their time.
8. who, other than the parents, can look after the children.
9. how holidays and special occasions will be shared.

This is not a complete list of issues covered by Parenting Plans - they differ from family to family depending on the particular needs of the children and their parents.

Some Parenting Plans, particularly in high-conflict cases, include the appointment of a Parenting Coordinator (commonly known as a "PC") - usually, this person assists the parents in resolving their disputes and depending on the parties' agreement, may have arbitral powers, meaning, they can actually be empowered to break any deadlocks and made final decisions.

A thorough, thought-through Parenting Plan is an invaluable tool for separated parents. It can help immensely on the road ahead, particularly during periods, as there are in life in general, when the separated parents are not getting along very well.

Thursday, September 4, 2014

"My spouse won't leave the house"......(Ontario)

In Ontario, if you are married to your spouse, you have the same rights as he/she does to "possess" the house, condo or apartment in which you reside during marriage, meaning, to live there.

These are called "possessory rights" and they are entirely separate from who actually owns the property (has title to it).

Common-law spouses do not have the same rights to possession.

On separation, who stays and who moves out often becomes a live issue. Separation often involves tears, disappointment, anger and sometimes, even a power struggle. When separated spouses continue to live together in the matrimonial home (which may include a condo, an apartment, a farm, etc.), the atmosphere is rarely pleasant. In some cases, it may become more than unpleasant: - arguments, efforts at control, invasion of privacy and power-struggle over possessions or even time with children are some examples of what separated spouses face. At the height of such difficulties we hear about domestic violence, abuse and intimidation.

We are often asked: "Can we not make her/him move?", "kick them out?",  "make them go elsewhere?"

There are two circumstances under which a spouse vacates a matrimonial home after separation:

1. they do so voluntarily OR

2. they move because they are ordered to so by Court Order - here, the Order amounts to depriving the moving spouse of their "possessory rights" and Courts are generally reluctant to make such "exclusive possession" Orders without very good reasons.

Here are some examples of what will not result in an Order for exclusive possession (and this list is not exhaustive):

a) it's not pleasant in the home
b) your spouse stares at you
c) your spouse reads your emails
d) your spouse has told the children of the separation without telling you in advance
e) you and your spouse argue from time to time
f) your spouse speaks loudly
g) your spouse hogs the TV and has not bought groceries in weeks (depending on the actual financial circumstances, this may have to be addressed by a request for support);
h) your spouse is out at all hours and barely home.

Here are some example of what will likely result in an Order for exclusive possession (again, the list is not exhaustive):

a) your spouse is extremely verbally abusive and there are independent witnesses to corroborate this;
b) your spouse is physically abusive;
c) your spouse stalks you and bullies you;
d) your spouse has thrown objects at you;
e) your spouse acts in a way which causes you to fear for your safety and/or the safety of your child/children.

If you want more information about this very important issue, please speak to a lawyer. Do not rely on the internet alone for legal advice. Seeking information is helpful but ultimately, you should have assistance from someone who is well-versed in the area and can provide real help.

Wednesday, September 3, 2014

Same Sex Law in Ontario - UK civil partnership like a marriage

In June, 2014, the Ontario Court of Appeal upheld the decision of The Honourable Madam Justice Mesbur, sitting as a motions judge, that a civil partnership entered into by two parties (men) in the UK, at a time same-sex marriage was not available in the jurisdiction, was like a marriage, according them the rights and obligations of married spouses in Ontario.

You will find the decision of the Court of Appeal, Hincks v. Gallardo, here:


On behalf of the panel, Justice Hourigan held as follows:

"[28] The interpretation by the motion judge of the terms "spouses" and "marriage" is entirely consistent with the modern approach mandated by the Supreme Court of Canada: Her interpretation achieves one of the fundamental purposes of the DA [Divorce Act] and the FLA [Family Law Act]: it provides the parties with an equitable and certain process for resolving their economic issue arising out of the dissolution of their relationship. In contrast, the interpretation urged upon us by the appellant would result in the parties being effectively treated as legal strangers under the legislation and would force them to assert their economic claims through more limited and less predictable means, such as trust claims."

Upward and onward, Ontario...definitely a step in the right direction, one of many still ahead of us....

Tuesday, February 11, 2014

What you tell your lawyer is confidential.....

A friend of mine recently told me that on an episode of Breaking Bad, someone mentioned that what you tell your lawyer is confidential - is this true? - she asked..


All communications between a solicitor and their client are privileged (confidential) - there are only rare circumstances in which the information can be revealed - likely as a result of a Court Order.

Here is another thing you may be interested to hear: this privilege applies to that lawyer forever. This means that even if a particular lawyer is no longer your lawyer (ie: you parted ways for some reason), that lawyer can never reveal the information you told him or her in confidence.

BUT here is a scenario you might consider: you bring your best friend into a meeting with your lawyer and she/he hears what you and your lawyer talk about. Two months later, that "best friend" is no longer a friend of yours.....the lawyer is still bound by privilege but he/she will have no control at all over what your former best friend may tell the world about your case - you "diluted" the privilege when you brought your friend into the meeting in the first place.....


Friday, September 13, 2013

"When do my child support payments end?" (2)

We have previously posted in response to this question, here:


The post generated many comments and questions so we decided to provide more guidance in the form of the following "flash cards" on this topic:

1. Contrary to a wide-held view, in Ontario child support does not end automatically when a young person turns 18. It also does not continue automatically until a young person is 18, without regard to what the young person is doing. For example, if a 16-year-old leaves school, begins working and moves in with friends, child support will end then and not continue for another two years until he/she turns 18.

2. A young person may continue to be considered "a child" for the purposes of child support even when they are 23-24.  Whether or not they remain eligible to receive support depends on the specific circumstances of each case but generally speaking, if a young person cannot become financially independent because they are still at school or unable to attend school or work for medical reasons, child support may continue to be payable.

3. Child support is the right of the child and not the right of the recipient parent. Parents do not have the right to bargain away, between themselves, the child's right to support.

4. There are different forms of child support contemplated by the Child Support Guidelines. The form and the amount of child support is likely to change when a young person enrolls in post-secondary education and in particular, if they live away from home for part of the year to attend school.

5. The overall means (ie: what is available in funds) of the parents and the child are always relevant to the issue of child support - particularly when post-secondary education is involved. This means, for example, that a parent earning $40,000 a year will not be expected to participate in covering any significant portion of a child's attendance at an Ivy League university in the US, at considerable cost. That parent will only be expected to contribute proportionately to their actual income.

6. The Courts do not simply accept line 150 of a payor's income tax return as an indication of their actual income for child support purposes. Self-employed individuals, in particular, will be subject to much closer scrutiny as to income and benefits available to them, pursuant to the Child Support Guidelines.

Making an important point once again - there are some general guidelines from the law on the issue of child support - there is no doubt about that  - BUT, each case also turns on its own facts and you should consider those specific facts with an actual lawyer to make sure that your particular circumstances are properly addressed.

Friday, June 28, 2013

Divorce in Canada

The word "divorce" is often used to describe the end of a marriage (separation) and all of the issues which result from that event.

In this post, however, we are addressing divorce as a separate claim in a court case - the official termination of the marriage by a divorce order.

Here are some facts about which you may not yet know:

1. in Canada, only a judge can grant a divorce. While a marriage can be performed by a variety of individuals, only judges are empowered to officially declare a marriage to be over (in Ontario, that would be a judge of the Superior Court of Justice). For this reason, if you want a divorce, sooner or later you will have to start a court case to address that issue (although, depending on the facts of your case, that may be your only claim before the court);

2. Canada is a "no fault" jurisdiction. This means that the spouse requesting the divorce does not have to prove uncomfortable facts as a basis for the divorce. For example, that spouse does not have to either allege or prove an affair by the other spouse, to allege or prove abuse or to cite "irreconcilable differences", which is a claim often heard from our neighbors to the south.  Many successful divorce applications do not even cite a reason for the separation. One can alleged adultery or cruelty but these are very rare claims these days, involving complex issues related to evidence. In my many years of practice, I can count on the fingers of one hand cases in which either adultery or cruelty were pleaded as the basis for a divorce request.

3. 99% of couples in Canada divorce on the basis of a one-year separation.

4. you CAN file with the Court your materials for a divorce before the first anniversary of your separation - the point is that unless there are very special circumstances to your case, the divorce is not going to be granted until the one-year is up;

5. most divorces in Ontario proceed "over-the-counter" - this means that no one appears to actually "argue" the divorce and there is no live hearing on the issue - the divorce is completed through paperwork filed with the court. The required materials are submitted at the court office and then reviewed by a judge who, if satisfied that all issues are in order, grants the divorce.

6. the divorce, once granted, becomes "effective" 30 days from the date of the divorce order itself - this "cooling period" can be set aside by the court in unique circumstances (on request) but generally speaking, you will not be able to apply for your marriage license until this period is over.

7. divorces are not automatic. The court has the right to decline a request for a divorce if the court is not satisfied, based on the materials filed, that reasonable arrangements are made for the support of children. This is a very important area to consider when filing your divorce materials, particularly your affidavit in support of your divorce request.

8. a divorce can be torn away ("severed") from the rest of the issues between the parties and proceed while those issues wait to be completed. Again, the considerations in 7. above apply. In other words, a separated couple can be divorced even before they are able to finalize property issues, for example, or issues related to spousal support.

Divorces in Canada are governed by technical procedure and the courts' expectations for materials filed are high. If in doubt while completing the paperwork, consult a lawyer......

Thursday, June 27, 2013

Child Support over 18

Many support payors and recipients in Canada think that child support is payable only until a child turns 18. In fact, that is not correct.

In Canada, child support is payable to young persons, even over the age of 18, who for good reason are not able to withdraw from their parents' financial assistance. What are such "good reasons"? There can be two (or a combination of them):

1. a child attends school (for example, university or college, but there may be other schools which would qualify) - depending on the financial resources of the parents, support may continue even after one degree is completed; or

2. for medical reasons, a young person over 18 cannot become financially independent (for example, the child has a long term disability or was involved in an accident and is recovering).

One very common scenario we get questions about is the following:

Fictional Chloe attends Fictional University and is in her 3rd year. Early in the second term, she is in a car accident and is unable to finish the year. By the beginning of the 4th year, she is not able to return to school full-time and can only take a half-course load, for medical reasons. We get asked: is she still entitled to child support? - the answer is "yes" - that is because she is still "a child of the marriage", which is a phrase used to describe a young person who either for medical reasons or because she remains at school cannot become financially independent. In this scenario, it's a bit of both - she is not in school for medical reasons but would otherwise be - child support remains payable even when she is taking less than a full course load.

Tuesday, June 25, 2013

Child Support is the Right of a Child

We were recently involved in an arbitration which addressed the following question: "Can parents ever make final arrangements as to child support?" For example, can one spouse agree not to seek child support from the other or to accept less support that the law would provide?

I think that most people would be surprised by this question. They would respond: "Of course they can - only parents know what is best for their children and if they agree with each other what support, if any, should be paid, it's their business and no one else's".

The issue is not as simple as that. In fact, child support is the right of a child and not the right of either parent. Parents do not have the right to bargain with that support. This has been confirmed in a number of court decisions, the most notable one being that of the Supreme Court of Canada in Richardson v. Richardson.

Simply put, courts in Canada retain the right to interfere in "deals" made by parents where such deals do not provide for adequate child support. The measuring sticks are, firstly, the Child Support Guidelines (federal or provincial, as applicable). There are situations in which a parent can demonstrate that even where the terms of the deal are a departure from the Guidelines, the support is reasonable in the specific circumstances of the case.

Here is the issue: arrangements made between parents which do not consider, in advance, the courts' "big daddy" role when it comes to child support and the best interests of children may be vulnerable down the road so it's best to seek legal advice on this issue. Specific wording in a separation agreement, for example, can address this point to a great extent (and also deal with the expectations of the courts' when considering a request for a divorce...which is a subject we tackle in another post)......

Wednesday, January 9, 2013

Incomes over $350,000 and the Spousal Support Advisory Guidelines

You may have heard about Child Support Guidelines (both federal and provincial). They are mandatory in their application. On a daily basis, both before the Courts and in the context of out-of-court negotiations about child support, they are used to calculate amounts payable by parents, one to the other, based on their respective incomes for child support purposes, the children's residential arrangements, the children's activities and many other relevant factors. 

What about spousal support? How are those amounts calculated?

Setting aside for the moment the issue of entitlement to spousal support (being the preliminary issue which needs to be determined), we now have the Spousal Support Advisory Guidelines, which came about after years of government-sponsored studies on appropriate spousal support levels and fair methods of calculating them. The SSAGs, as they are known, are not mandatory in their application. Rather, they are a guideline. They remain "advisory" to the Court - hence the use of the word in the title.

The SSAGs have many very interesting features and deserve a lot of comment. There will be future postings in this blog about them. 

For the moment, I comment on whether or not they are applicable to incomes (in the payor's hands) of over $350,000. The Guidelines themselves say that they "may not apply" in such situations but increasingly, Courts have applied them, particularly to incomes materially in excess of $350,000. One of the arguments made is that if the parties were still together, all of the income available would be used for their benefit - there would be no artificial "cut-off" after $350,000. So why should the same scenario not apply once the parties are separated, assuming the spouse claiming spousal support is able to establish entitlement in the first place? 

For more information on this issue, and for a more in-depth discussion on how the law may apply to the specific circumstances of your case, speak to a family law lawyer.

Premium Dutch Hydrangea - photo by AJ

Thursday, November 29, 2012

What is ADR?

ADR stands for alternative dispute resolution (sometimes also referred to as external dispute resolution). This term describes collectively various approaches for resolving disputes between two (or more) parties without having to use the court system.

Alternative dispute resolution encompasses dispute resolution mechanisms such as mediation, arbitration, mediation/arbitration, negotiation, collaborative law and other subcategories of dispute resolution

ADR has become an increasingly viable and popular method of addressing disputes, including family law disputes, for a number of reasons. The administration of justice, including in Ontario, has faced increasing pressure from a number of fronts. Rapid urban expansion has meant that courts are facing more and more litigants every day. In the meantime, there is competition for financial resources, including from healthcare. As courts become busier and busier, alternative methods of addressing disputes become increasingly attractive. More and more litigants are turning to mediation and arbitration, for example, to sort out their family law problems.

In summary terms, mediation is a process where spouses meet with a third party who is skilled at facilitating negotiation between them. Mediation may be open or closed. In closed mediation, nothing said in the context of the negotiations with the mediator can be repeated in either an existing or a later court proceeding.  In open mediation, the reverse is true and either party may request that the mediator issue a report summarizing the process and outcome of the mediation. Either party may then rely on this report before the court.

Arbitration is essentially "private court". The parties to an arbitration agree that a person selected by them (the arbitrator) will make a binding decision on the issue(s) put before him or her. In Ontario, the arbitrator is bound by the same law that a judge would be bound in making his or her decision for the parties.

Mediation/arbitration is a hybrid of the two processes described above. For a period of time, the parties attempt mediation. Based on specific, agreed-to terms, the mediation ends if the parties are unable to reach a resolution and the mediator then puts on an arbitrator's hat. This means that he/she then convenes a formal hearing of the outstanding issue(s) and after considering evidence and submissions, makes a binding decision for the parties.

For further information about how ADR may be of assistance to you in a family law dispute, speak to a family law lawyer.

Artwork: Kees Van Dongen


Related Posts with Thumbnails