FAQ’S

What is a legal resolution?

1) Privately between the two of you

Separation agreement—you and your spouse decide on your terms, they are summarized in a document drawn up by a lawyer, and when it is signed and witnessed, it becomes a legally binding contract.

There are a number of ways to negotiate a separation agreement: privately, lawyer based, mediation, med/arb (mediation/arbitration), collaborative law

Award: Document produced by an Arbitrator, through Arbitration. Refer to question 3

2) By a Judge

Court Order— this is drawn up by a judge either after a case conference or a trial. Case Conferences happen before a trial, with a different judge who makes sure you have everything you need to go to trial. If you do, they give their opinion on how they would decide the case based on the documents you have submitted and how you have presented your case. You then have an opportunity to accept this opinion and turn it into a court order, or you can attempt another negotiation and the judge will turn it into a court order, but you both have to agree to the terms. If you cannot agree, your case proceeds to trial, and that judge will impose an order based on your case.

Private Negotiation “kitchen table” agreement—both of you research all the issues you need to agree on (property, support, parenting plan). You then take your summary to your respective lawyers or a lawyer to turn it into a contract. This requires a high degree of amiability, and is the most cost effective. It is then critically important how you choose your respective lawyers: someone who will both inform and advise you in your best interests (make sure you have considered everything, your agreement follows family law statutes and regulations), and does not unnecessarily inflame conflict

Lawyer based Negotiation you negotiate all your issues through your lawyers. This can be a very expensive process depending on the level of conflict and the number of issues to be negotiated. If you don’t have many issues, and you don’t need to continue a relationship into the future, do not want to have direct contact with your spouse, this can be an effective option.

Mediation spouses use a mediator to help you negotiate your terms. You may have decided on a number of them, you may have already used lawyers for some of them, and only need mediation for one or two issues, or you may want all your issues mediated. There can be high degree of conflict and many issues to negotiate, but as long as both of you have an authentic desire to negotiate, and have a wish to move towards a workable and positive relationship, mediation can be very successful. It is usually the most affordable option, and the one that offers the most opportunity for rebuilding a new functioning relationship. Depending on your needs, you mediator may direct you to consult with other experts such as financial professionals, and may co-mediate a session with them if the you both decide it would work best.

Arbitration is like a private court. Both of you agree to hire an Arbitrator, present evidence, and the Arbitrator decides your issues. This combines aspects of mediation (you both have to agree to do it and choose your Arbitrator) and a court process (presenting evidence, someone else decides your issues). It is less formal and can be faster than going to court. The document the Arbitrator produces is called an Award, and it is legally binding.

Med/Arb This is a combination of mediation and arbitration. Your Mediator turns into your Arbitrator if you aren’t able to come to an agreement on one or more of your issues.

Collaborative Law like mediation both of you agree to a collaborative process, and retain lawyers trained in the collaborative law. You and your lawyers form a team, where the four of you agree to negotiate the issues together and not go to court. Other collaborative professionals can be part of this process, such as social workers, therapists, counsellors or financial experts. If you aren’t able to come to an agreement on all your issues and you want to start a court process, you will need to hire different lawyers.

Court This is a formal and often lengthy process. Because of this, it’s usually the most expensive, and maintains and fosters the most conflict. However, sometimes, if you have exhausted other ways of negotiating, or simply cannot negotiate, and cannot agree on an Arbitrator, the court then provides a place to have a final decision.