How Are Family Law Disputes Resolved in Ontario?

How Are Family Law Disputes Resolved in Ontario?

When a relationship or marriage breaks down, spouses often become parties to family law disputes that demand resolution. Who will pay child support? How much? What about spousal support? Will one spouse keep the house? Where will the children live?

These disputes are resolved in four main ways:

• Negotiation
• Mediation
• Arbitration
• Court

Negotiation

The vast majority of family law disputes are resolved through negotiations. In some cases, parties can negotiate a solution by discussing a dispute themselves. Often, they seek the assistance of lawyers in order to understand their rights and obligations and assist with negotiating a fair solution to their dispute. In general, negotiation is the most cost-effective method of resolving a dispute.

A successful negotiation will conclude with a written agreement. In Ontario, agreements are unenforceable unless they are made in writing, signed by the parties and witnessed. The parties should exchange complete financial disclosure when an agreement deals with financial issues of any kind. An agreement should never be signed without first consulting with a lawyer for independent legal advice.

Mediation

When negotiation fails or is impractical, parties sometimes choose to pursue mediation. Mediation is a private negotiation facilitated by a neutral third party, called a mediator. Usually a mediator is trained in family law or is a mental health professional. Mediations can take place with or without the assistance of lawyers. Often, the parties will agree that all discussions during mediation are to stay confidential. This allows parties to engage in more free-flowing discussions and can sometimes help to “break the ice”. Mediation is only a realistic option for some parties and requires both to agree to participate.

A successful mediation can help suitable parties reach an agreement quickly and at a reasonable cost compared to the dispute resolution options that follow.

Arbitration

When parties cannot reach an agreement through negotiations, they will sometimes decide to retain an arbitrator to decide their case. Arbitrators act as private decision makers, taking the place of a Judge in a court case. In an arbitration, each party usually has a lawyer to represent them. An arbitration is often conducted in a similar fashion to a court case, but usually the rules of evidence and procedure are relaxed and the arbitration proceeds more quickly than a trial would. At the end of an arbitration, the arbitrator will render a decision, much like a judge. The parties are bound by that decision as they would be by a court order, subject to a limited right of appeal.

Arbitrations can have the advantage of bringing a matter to a swift conclusion, as compared to a court case, however, both parties must be motivated to pursue this option.

Court

When parties cannot negotiate a resolution to their dispute and do not wish to engage in alternate forms of dispute resolution such as mediation or arbitration, they may choose to start an Application in court. This option is also used to compel a reluctant party to participate in the process of resolving the parties’ dispute if other efforts have failed.

In the event that an Application is commenced, the parties will begin the process of resolving their matter in the court system. The parties are often, but not always represented by lawyers. The parties will be obliged to attend a series of conferences before a judge designed to encourage the parties to settle their case. If a pressing matter arises, parties can bring motions to have a judge deal with some aspect of their case on a temporary basis. Ulitmately, if the parties cannot resolve their case, they will proceed to trial. The vast majority of court cases settle before trial.

Court remains the preferred method of resolving very high-conflict disputes. Court cases allow for interim relief if such relief is required and can compel reluctant parties to participate in the dispute resolution process. However, court cases can be slow to conclude and parties can incur very significant legal fees resolving their disputes.

For more information about dispute resolution methods or any questions about Family Law, please contact Michael Ruhl at mruhl@smithvaleriote.com or 519-821-2165.