Going through a divorce or separation can be a difficult and confusing time for families. Choosing the process that works best for what you and your spouse need will ensure a smooth negotiation that sets your family up for a new future.
Collaborative Process clients appreciate the cost-effective and dignified settlement process that is radically different from what they may have expected. As a result, clients achieve a high degree of satisfaction in both the process and the outcome.
The objective of a Collaborative Practice is to reach a settlement from the outset.
A Collaborative Process relies on both a hands-on client participation as well as skillful coaching provided by both Collaborative Lawyers.
The parties sign a Participation Agreement which reflects both parties’ commitments to negotiate and communicate respectfully as well as an intention to provide full disclosure.
The result is a process that is respectful and a settlement that is mutually satisfactory.
Since the parties have signed an agreement to stay out of court, the process can flow within a safe-space, without the acrimonious conditions, which result from a court process.
Essentially, there is a full and expansive discussion about what really matters to each party, particularly their common goals, such as the welfare of the children.
Collaborative Practice is commonly regarded as a form of Alternative Dispute Resolution. However, since the Collaborative Practice has proven to be highly effective throughout North America, as well as Europe and other parts of the world, it is fast becoming more mainstream in Canada and widely recommended as a smart resolution process. Some well-known celebrities who have relied on this process include Madonna, Robin Williams and Cameron Crowe.
The bottom line: Clients achieve a high degree of satisfaction in the Collaborative Process and the outcome.
Common issues related to property, spousal and child support as well as custody, are considered corollary to divorce and are usually resolved before a divorce is granted.
The only ground for divorce is marriage breakdown.
If parties are separated and living apart for one year, this is sufficient evidence to show a marriage breakdown has taken place.
A divorce proceeding can be initiated any time after separation, but a divorce will not be granted by the court until one year after the date of separation.
The only exceptions are:
if there was adultery and not more than 90 days have lapsed since it was discovered;
if there has been physical or mental cruelty.
There are very different processes that people can choose when they separate after a marriage or a cohabitation.
Different processes can be selected to make parenting arrangements, for reaching an agreement regarding a division of property, and for providing support for children and spouses, among others.
Any of the below processes are available to common law spouses except for a divorce order granted by the court. In Ontario, there is entitlement to Spousal Support if the parties have lived together for three years, or they have had a child together, and are in a relationship of some permanence.
When the parties separate, a common law couple does not have the same rights to property as married couples do, unless the property is in both names.
While a married couple divides property equally at the date of separation, and shares in any increased value of property (called equalization), a spouse in a common law relationship is not entitled to an equalization payment, although a common law spouse may be entitled to a payment for a direct or indirect contributions to property that the other owns.
Two Collaborative Lawyers, certified in the Collaborative Process, represent spouses of both parties.
Both parties sign a Participation Agreement. This is a document that reflects everyone’s commitment to negotiate and communicate respectfully. It also ensures full disclosure of important information.
The common objectives are to find mutually satisfying solutions and to reach an appropriate settlement without resorting to a court mandated process.
A pre-determined series of four-way meetings are set up in order to discuss the issues and negotiate the terms of a settlement. Both lawyers are actively engaged in providing legal information, interest-based negotiation strategies and facilitating an effective and balanced negotiation process.
According to the Participation Agreement, if negotiations break down during a collaborative process, and one or both parties opt to go to court, both spouses must retain different lawyers and recommence the process.
At times, other experts who are also trained in the collaborative model, such as a Financial Advisor or a Family Professional may be called in to provide advice. Experts are jointly retained by both parties.
The Collaborative Process ensures that a less acrimonious negotiation process is followed, one in which children’s needs are firmly at front and center.
Collaborative process can be as short as 6 to 9 months and have a high rate of success.
Separating couples choose to discuss and resolve their issues without seeking legal advice.
If there is no power imbalance between the parties, they may be able to communicate well enough to work out an agreement regarding their separation.
Particularly after a short marriage, this approach may be an appropriate option.
In cases where the issues may not be simple, however, such as dividing assets, pensions or businesses, or if the parties do not both feel comfortable due to an imbalance in negotiating powers, this informal process is not recommended.
After reaching an agreement in principle, however, it is advisable to obtain legal counsel prior to negotiating the terms and to request that a lawyer draft a Separation Agreement. In particular, parties are advised to have the agreement reviewed by a lawyer before it is signed.
Spouses who choose to litigate must follow court-mandated procedures, such as filing documents with strict deadlines, and following the prescribed rules.
It is difficult to estimate how much time and how costly a litigation process is.
It usually takes a much shorter time to reach an out-of-court settlement.
All Court proceedings are public.
The decisions of a judge are final, subject to right of appeal.
Arbitration is a private process and an adjudicator makes the final decision, similar as a judge would in a courtroom.
The Arbitrator may be an experienced lawyer.
Different aspects of the process can be selected by the participants, such as when it is held and who will attend as well as the level of formality of the process.
An Arbitration is usually a faster process than the court process.
An Arbitrator’s fees are paid by the parties but the costs may be assessed.
An Arbitrator’s decisions regarding the legal rights and entitlements of the parties are legally binding, although subject to the right of appeal.
Traditionally, the lawyer of each party negotiates for his or her client and the parties are not present when the lawyers communicate.
The terms of a settlement that is proposed and negotiated usually refers mainly to legal entitlements of both parties.
Experts may be retained by one or both parties, if necessary.
The lawyers may arrange a settlement meeting and either party may choose to litigate if negotiations are not successful.
A Mediator is a neutral party who facilitates the negotiation process to reach a mutually satisfactory settlement.
The Mediator is sometimes an expert in a particular field such as social worker or a lawyer.
The role of the Mediator is to help the parties engage in a discussion about the important issues and canvass information that might help the parties generate options in order to resolve conflicts and to reach a settlement.
The parties may attend mediation with or without lawyers, although it may be advisable to have lawyers present.
The Mediator may give legal information but does not provide legal opinions.
The parties consult their lawyers for independent legal advice and to draft legal documents, although some Mediators will draft the legal agreements before the parties seek independent legal advice.