Six Ways to Resolve Your Issues:
Whether it is custody, access, child support, spousal support, division of property or equalization, you need to find a way to resolve your issues with your spouse.
Here are the ways:
1. Kitchen Table
How it works: You and your spouse discuss the issues sitting around the kitchen table after the kids are asleep. You work out a resolution of the major issues without the help of anyone. You bring to your lawyer the terms of agreement. Your lawyer will give you advice about it. If it is seems reasonable, your lawyer will create a legally binding separation agreement which will incorporate the terms agreed upon as well as some additional details. You will return to the office to review the separation agreement when it is ready. If you agree it’s okay, we send a copy of it to your spouse. It is best if your spouse obtains independent legal advice (ILA) so s/he cannot later say s/he did not understand it. If your spouse refuses to get ILA, we will include a waiver of ILA, which is signed by your spouse and their witness, in which your spouse acknowledges they were told to speak to a lawyer but voluntarily are signing the agreement without ILA.
Pro: It is inexpensive because you are not using any professionals to resolve your issues.
Con: Many people are not able to resolve things with their spouse on their own and it ends in a big argument with more hurt feelings and frustration.
How it works: A neutral third-party helps you and your spouse discuss your differences and negotiate an agreement. Once completed, you bring the mediator’s report to your lawyer as it is subject to legal advice. Your lawyer will review the document with you and offer his or her assessment of it. If the agreement is still acceptable, your lawyer will create a legally binding separation agreement based on the terms agreed to during the mediation process. It is then sent to your spouse who should obtain ILA before signing it.
Pro: Although there is a user fee, the cost is less than other processes. In most cases, resolution is achieved. It is a fairly speedy process and keeps the conflict to a minimum as you are forward focused.
Con: Although an impartial mediator can be very effective in helping you communicate your needs and expectations for settlement – often at a much lower cost than strictly using lawyers – the mediator cannot offer legal advice or express an opinion. Also, you don’t have someone on your side during the negotiations. This is difficult in situations where one spouse feels bullied by the other.
3. Collaborative Process
How it works: Collaborative Process is a new way of resolving separation issues. You and your spouse will work with a team of professionals and commit to negotiate a settlement without resorting to Court. To keep your legal costs to a minimum, you and your spouse will work with a Financial Specialist to resolve the financial issues and a Parenting Coach to resolve the parenting issues. You and your spouse will each work with a Divorce Coach so that the emotional issues won’t sidetrack the negotiations. If one of you chooses to go to court, both parties will have to start all over with new lawyers and professionals. Ultimately, any unresolved issues are resolved with the help of your lawyers at a four-way or five-way meeting (with the involvement of the other professionals). The agreement is then incorporated into a separation agreement.
Pro: The advantage to the Collaborative Process is that it gives couples a way to find creative, personalized, dignified resolutions to their disputes. You and your spouse control how the process moves along and have a greater say in the outcome. Although trained professionals assist you to reach an agreement, the team approach is less expensive than going through the Court system because it keeps you out of your lawyer's office as much as possible and the results are usually much better. A lot of the work is done with one professional (instead of each retaining your own) so it ends up being less expensive. By your lawyer being prohibited from representing you in Court, there is an incentive to the parties to negotiate in good faith and the lawyers become “settlement specialists” since they will never be representing you in a court action. Settlements reached through the Collaborative Process are generally longer lasting, less acrimonious and more cost-effective than going to Court. We believe the Collaborative Process is the best process for clients.
Con: It is more expensive than kitchen table negotiations or mediation because you are involving more professionals.
4. Cooperative Process
How it works: Your lawyer will exchange emails or letters with your spouse’s lawyer in an attempt to negotiate an agreement. Sometimes four way meetings (involving you, your spouse and both lawyers) are conducted for face-to-face discussion of the issues. If agreement is not reached, either party may commence a court action and the same lawyers can represent you in court.
Pros: Often settlement is achieved without having to commence a court action.
Cons: Unlike the Collaborative Process, there is no incentive to negotiate in good faith. Almost all court cases start as a Cooperative case but agreement is not reached through negotiations. Starting off as a Cooperative Process does not mean it will end that way. It may end up in Court if one of the parties decides to go that route at any time.
How it works: Your lawyer and your spouse’s lawyer will find a neutral third party who will first attempt to mediate an agreement between you and your spouse. The parties pay this neutral person jointly. Often the neutral person is a senior lawyer but it can be anyone agreed upon. Sometimes, lawyers are present during the mediation stage. If an agreement is not reached during mediation, the mediator becomes an arbitrator with the powers of a judge. The arbitrator might hold a hearing (like a trial) in his or her office at which the lawyers and clients present their evidence and urge the arbitrator to make a decision in their favour. After the hearing is complete, the arbitrator will present his or her decision. The final resolution must incorporate the arbitrator’s decision.
Pros: The parties can define the process. You won’t have to complete all of the complicated forms and processes inherent to the court process. You will be able to choose the “judge” unlike in the court system.
Cons: It is a more expensive process than most processes (but less than court) because of the involvement throughout of lawyers and the cost of the arbitrator. It can add to the hostility between the parties because each is advocating for their own solution and trying to make the other person’s ideas look less favourably. It pits you against your spouse.
How it works: Going to Court is the option of last resort. We have seen few Court-ordered settlements end to the satisfaction of either party. Court is expensive, time consuming and sometimes messy. It's often a lose-lose situation that rarely benefits the family. The process usually takes 1 to 3 years to resolve the issues. The process is complicated involving the completion of many forms and attending court at conferences with judges on numerous occasions.
Pros: Eventually, a judge will make a decision. The Court can impose sanctions on an uncooperative or dishonest party. The Court Process is helpful if your spouse is unwilling to negotiate in good faith and in a timely manner.
Cons: Despite our best efforts to represent your side, the judge is ultimately responsible for deciding how the case gets settled - and hence, your family's fate. Judges have little time to deal with your case, may not understand the dynamics of your relationship and are restricted in their choices by the law and precedent. Furthermore, some judges did not practice family law prior to taking a seat on the bench and are not as familiar with some of the issues involved in a family law case. The judges do their best, but it is a difficult task they are given. The Court process is fraught with procedures and forms that take a lot of time and add nothing to the resolution of the case. Furthermore, the Court process is an adversarial one. Each party is trying to make the other look bad and make them self look good. In the end, you may both leave feeling unsatisfied with the decision and perhaps even more angry, hurt and resentful than before. This is why we always encourage our clients to first consider alternative means to Court for their settlements. Of course, there are many cases that require the assistance of the Court to settle outstanding issues. As a result, we are prepared to represent you in the Court process if necessary.