Separation & Divorce
The most important relationships for many people are with their children, spouses, partners or other family members. If you are partners, spouses or parents separating or divorcing, you need to work through the issues that arise from separating your physical and financial lives while maintaining the capacity to work together to parent the children in your family.
Mediation does not require that you agree on the issues and concerns that brought you to the point of separating. It is a process that helps you find solutions that are effective for your family. No one imposes an outcome on you. Mediation empowers you to make decisions that are best for you and your family in an informed, thoughtful manner. It can help build a foundation for continuing to work together effectively as issues arise in the future. Working with a mediator to craft arrangements that meet the needs of your family can be a process that you return to as your situation changes.
Steps in a Family Mediation Process
- Intake interviews – I will meet with each of you separately to gather information and determine if a mediation process is appropriate. These interviews are confidential and provide you with an opportunity to talk about what is important to you and to ask questions about the mediation process. You can also let me know if you have any concerns about participating in mediation, so we can discuss how the process can be structured to ensure you can participate effectively.
- An agreement to mediate – If both of you want to proceed with mediation following your intake interviews and I agree it is appropriate, we will sign an agreement to mediate. This agreement outlines the terms of the mediation and that the mediation process is a “closed” process. This means that, unless required by law, all communications which occur during the mediation process are confidential and cannot be disclosed to a judge or arbitrator.
- Mediation sessions – We meet to allow you to work through the issues arising from your separation or, where you have a prior agreement, any issues that have arisen since your agreement was reached. Mediation sessions may occur with both of you in a room together or with you in separate rooms. If you are mediating in a room together, I may speak to you separately at times if I believe it will be helpful to the process. The mediation session can be supported by experts providing information which will assist you to make informed decisions on an issue. It is also possible to have a lawyer-assisted mediation session if there is a particularly contentious issue and having your lawyers present will assist you in reaching an agreement. It is very difficult to know how many mediation sessions will be needed for you to work through the issues that your situation creates because it is impacted by the complexity of the issues, the need for information from experts or third parties and the dynamics between you.
- Disclosure – Full financial disclosure is an essential part of an effective mediation process. You will be asked to disclose detailed information in relation to your income, expenses, assets, liabilities and any property disposed of in the past two years.
- Agreement – Once you have reached an agreement on the issues that are addressed in the mediation, I can prepare a written agreement that states in detail what you have agreed to. We will review the written agreement in a mediation session to ensure it captures all aspects of your agreement.
- Legal Advice – As a mediator who practiced family law, I recommend that parties seek legal advice to ensure you fully understand and appreciate the implications of any agreement reached in mediation. I can provide legal information during the mediation process, but I cannot provide either person in the mediation with legal advice or a legal opinion. Some people are more comfortable getting advice from a lawyer before they start mediation to have a better understanding of their legal rights, while others seek advice during the mediation process or once an agreement is reached. I recommend that parties receive legal advice before signing any agreement that resolves issues raised in mediation.
Cohabitation Agreements & Marriage Contracts
Many people only understand the rights and obligations that can arise from living with or marrying another person once they separate or their partner or spouse dies. The ability to claim an interest in another person’s property, an entitlement to an equalization payment under the Family Law Act, R.S.O. 1990, c. F.3 or how the equalization payment is calculated may not seem fair or appropriate to you.
People who are planning to start living together or get married, or who are cohabiting or are married, should consider attending mediation to discuss their financial arrangements while they are living together or in the event one of them dies or they separate. Mediating a cohabitation agreement or marriage contract allows you to decide your future arrangements, where you are permitted, and will ensure you understand the areas that cannot be agreed to prior to a separation.
Marriage contracts and cohabitation agreements are important if you have obligations to support children from another relationship or a former spouse or partner, or if you have a business or assets which you believe should not be shared or should be shared in a certain manner following a separation or divorce.
The steps for a mediation process to discuss a cohabitation agreement or marriage contract are the same as outlined for a separation or divorce.
Any agreement you reach must be in writing, signed by both parties and witnessed. Full financial disclosure by both parties and independent legal advice are important to ensure that any agreement you reach will be upheld and enforced by a Court in the future. It is also important that parties to a marriage contract or cohabitation agreement have time to participate in a mediation process and reach an agreement without undue pressure from an approaching wedding date or a planned cohabitation date. If you are interested in entering into a marriage contract or cohabitation agreement, start the discussions with your partner and raise the possibility of mediation well before arranging to marry or cohabit.
Other Family Issues
You should also consider mediation as a process to address situations that have created conflict in your family:
- If you are a grandparent or other family member who wants to be involved in a grandchild’s or a child’s life and you are having conflict with one, or both, of the child’s parents. Mediation can be a process to agree to arrangements with the parents that will ensure your relationship with your grandchild or the child.
- If you are a parent who has not lived with the other parent of your child or children and you need to resolve issues that are occurring in relation to your parenting or child support arrangements.
- If you and other members of your family are working through living and financial arrangements with an elder member of your family. Mediation allows the elder and everyone impacted by the situation to come together as a family to discuss the situation and reach an understanding on moving forward.
- If you have suffered the death of a family member and this has created conflict or polarized family members as they try to work through their grief and address issues that arise from the death. A mediation process can help family members discuss issues in an open and supported manner to ensure that people are able to participate more effectively in making decisions at such a difficult time.
- If you have had interactions with the Children’s Aid Society, you may be able to participate in a mediation or circle process to discuss issues with respect to your child or children.