First comes separation, then comes negotiation
It can be a stressful time, and the disruption to your family can be agonizing. But there are steps you must take, and part of that is negotiating the contract to separate your lives.
How you get there is your choice. We can help you by whatever means you choose.
Couples who are relatively amicable often consider mediation first. It’s a non-adversarial, cooperative, decision-making process in which a neutral third party assists in resolving disputed issues between you and your ex‑spouse. The process is confidential and voluntary, and is designed to put the two of you in control of the outcome of your family law case instead of the Courts.
The mediator does not take a specific position or side, nor does he or she provide either of you with legal advice. They do help each of you consider your interests and goals, ensure you communicate effectively and respectfully with each other, and assist in defining issues and exploring options that may lead to an agreement.
You and your ex-spouse may attend on your own, or you can attend with your respective counsel, which is called lawyer assisted mediation.
Mediation is used to deal with both legal and non‑legal issues such as:
- Options and services available to both parents and children
- How decisions are to be made about your children
- Parenting time (the time the child is to spend with each parent)
- Contact (time with a child by a non-guardian)
- Communication and resolving issues in the future
- Child Support
- Spousal Support
- Issues related to the division of property
Mediation is always on a "without prejudice" basis, meaning that neither side can use what was said in mediation as part of any Court proceeding. It’s usually faster, less expensive and procedurally simpler than going to Court.
If mediation is successful, the outcome is a non-legally binding agreement. The terms are then used by your lawyer to write a formal legal contract.
If the issues are difficult and there is a concern you and your ex-spouse will be unable to reach an agreement through mediation, you may wish to proceed to Mediation/Arbitration.
Mediation / Arbitration
If mediation is unsuccessful, mediation/arbitration is the final step in attempting to resolve any outstanding disagreements without going to Court.
In mediation/arbitration, the parties choose an impartial third party who will impose a decision if neither of you can agree on a settlement through mediation. In this situation, the mediator becomes an arbitrator who then hears evidence and argument, and makes a decision called an Arbitration Award which is legally binding (but may be appealed to the Courts in certain situations).
There are advantages to appointing an arbitrator rather than going to Court. In arbitration, you select the arbitrator and the parties agree to certain rules related to the process, whereas you have no control over the judge appointed to your case in Court.
The overall process is similar to litigation, but far less expensive and considerably faster. It’s recommended to attend mediation/arbitration with the assistance of legal counsel.
Collaborative divorce is a civilized process where each of you retains your own registered collaborative lawyer to advise and guide you through the course of negotiating an agreement to resolve all of your issues. It usually occurs when you and your ex-spouse are fairly amicable and open about your finances, but your finances are sufficiently complex that you both need the assistance of counsel, and possible shared experts to assist you in reaching an agreement.
The process is confidential, respectful, and efficient, and is best considered if you wish to work effectively with your ex-spouse to resolve family issues and preserve a positive environment for your children, while maintaining control over decisions made about your future.
Negotiations take place through "four-way" settlement meetings involving you and your ex-spouse, and your respective collaborative lawyers. It’s agreed in advance to pursue negotiation instead of litigation in Court. This sets the tone for a more open discussion and the exploration of creative solutions in order to reach agreement, rather than preparing a case for trial.
Collaborative lawyers advocate for you, provide legal advice throughout the process, and discuss options that may lead to a settlement of the issues. However, you and your ex-spouse are the decision makers in any settlement that is reached.
The process is voluntary and neither of you is obliged to accept a solution that doesn’t meet your needs or those of your children. You may not receive everything you expect, but keep in mind, the goal is to craft an agreement everyone can live with. You may not reach a settlement on all of your issues in which case a partial settlement may be agreed to, leaving fewer issues to be resolved through litigation.
If an agreement is reached, the collaborative lawyers draft the necessary legal and court documents to formalize the terms of your agreement, and submit the appropriate legal documents to Court for approval. A Court hearing is not required, and neither you nor your lawyers are required to appear in front of a Judge.
If you’re unable to reach an agreement and/or one of you commences litigation, both collaborative lawyers must withdraw their services in order to allow litigation lawyers to take the dispute to Court.
Applications to court
Applications to Court occur either where there is no agreement, or one of the parties is in breach of an existing Agreement. A sampling of the more common applications that might be made in Court include:
- Applications for Custody and Access (to determine parenting time)
- Applications for Child Support
- Applications for Spousal Support
- An Application for Exclusive Possession of the Matrimonial Home;
- An Order for Partition and Sale (directing that the Matrimonial Home be listed for sale)
- An Application to compel the other party to provide their financial disclosure
There would likely be several applications to Court and questioning of the parties under oath, before a Trial would ever even be considered. However, if all else fails and the parties involved are unable to come to agreement on all of the issues, both sides then appear in front of a Justice.
Decisions made at trial are based on the facts presented, the supporting documents provided, and the Case Law that already exists.
At Bodnaruk Law, we are accomplished at preparing and presenting your case to a Judge, and we make every effort to alleviate any of your anxieties by providing you with thorough instruction about the Court proceedings and what you can expect.
A trial can be expensive and time consuming. It could take as much as a week or two to present all the evidence to the Court, and it may take several months afterward for the Judge to issue a decision.