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FAQ: Alternatives To Court
Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.
The Importance of Negotiation
It is, in the ordinary course of a matrimonial matter, beneficial to attempt to reach a settlement through negotiation, where possible.
Justice Pentelechuk put forward the following remarks with respect to the foregoing notion in the case of Hameed v. Hameed:
“Family law litigation has broader societal implications than a typical commercial dispute; unquestionably where the best interests of children are involved. In matters involving a child’s bests interest, the courtroom, most often, should be the place of last resort. There are an increasing number of mechanisms and forums for parents to resolve their disputes outside traditional litigation. If these are utilized early, before positions become entrenched, an opportunity exists to move off the adversarial track and move toward rehabilitation of the former spouses’ post-divorce relationship. That is good for children and modern families generally.
. . .
So too is lack of predictability in family law litigation a disincentive to rational discussion, compromise and settlement. The party with the unmeritorious or ill-founded position may as well take their chances in a hearing or trial. In my respectful view, there is no surer path to unpredictability than an ill defined approach to evidence, where rules are adhered to some of the time on some of the issues and inconsistency exists between judges.”
However, there are case where litigation is required in order to advance a client’s position.
To learn more about negotiation as well as the services provided by Krol & Krol, call 905.707.3370 today.
Mediation/Arbitration – Alternative Dispute Resolution
Mediation/Arbitration is a form of alternative dispute resolution. As important and beneficial as mediation/arbitration and all types of alternative dispute resolutions are, they have elements that temper and caution their application.
In the case of McClintock v. Karam, Justice Gray pointed out that mediation/arbitration is inherently counter-intuitive. He notes that many parties opt to have them heard by different adjudicators as each one performs a function that the other does not.
Justice Gray explained as follows:
As noted earlier, mediation/arbitration is of somewhat recent origin. Ordinarily, if the parties are to engage in both mediation and arbitration, they will feel more comfortable if a different person is used to perform each function. That is because the two functions are instinctively considered to be mutually exclusive.
Justice Gray cited section 35 of the Arbitration Act to support his comments. Section 35 of the Arbitration Act states:
35. The members of an arbitral tribunal shall not conduct any part of the arbitration as a mediation or conciliation process or other similar process that might compromise or appear to compromise the arbitral tribunal’s ability to decide the dispute impartially.
To learn more about alternative dispute resolution as well as the services provided by Krol & Krol, call 905.707.3370 today.
Setting aside an arbitration award
The new regime for Family arbitration law in Ontario was created by the Family Statute Law Amendment Act (FSLAA) in February of 2006.
One of the significant changes it has made to the old regime of family law arbitration is that now a party to a family arbitration cannot simply waive their right to appeal the arbitration award.
Section 46 of the Arbitration Act outlines the various grounds a judge has at his/her disposal to set aside the arbitration award. However, the power that judges have to set aside the arbitration ruling has been rarely used, as courts still generally believe that a certain amount of deference should be awarded to the arbitrator’s decision.
In the case of Duguay v. Thompson-Duguay, Justice Perkins concluded that the arbitrator appeared biased towards one of the parties. As a result, Justice Perkins ruled that the family arbitration award be set aside pursuant to section 46 of the Arbitration Act.
Templeton J., in the case of Hercus v. Hercus, quoted Justice Perkins in Duguay and confirmed that in a mediation/arbitration forum, when the parties’ initial arbitration agreement falls through, it is incumbent on the arbitrator to assist the parties in reaching a new agreement prior to initiating the arbitration proceedings. If the arbitrator neglects to provide such assistance to the parties, the arbitration award could be set aside on a motion made by a party to the proceedings.
What stands out in Duguay above all, is the additional information set out in the court’s decision, which explicitly states that the Arbitration Act’s enforcement provisions “are not framed particularly for family law. Especially not for custody and access matters.” Many have thereby speculated that family arbitration awards are, indeed, not final.
To learn more about setting aside an arbitration award, call 905.707.3370 today.
My ex spouse and I tried mediation initially. Will the information disclosed in the mediation and the negotiations be disclosed to the court?
There are different kinds of mediators; mediators who are social workers, lawyers, psychologists, and members of other professions. Any of these professionals can become licensed to be a family mediator.
The purpose of partaking in a mediation is to attempt to reach an agreement with your former spouse on varying issues that require resolution following the breakdown of a marriage. These issues include, but are not limited to, child support, spousal support, the division of property, access and custody, and so forth.
Before deciding to see a mediator, it is recommended that both spouses speak to lawyers (each spouse will have to seek advice from a different lawyer) to make sure that the parties are aware of their legal rights and entitlements throughout the divorce process.
Whether or not the information from a mediation will be available to a court is dependent on whether the mediation itself was an open or closed mediation.
In the event that you were partaking in an open mediation, the mediator is allowed to keep a written copy of a report that outlines the items discussed in mediation, and each spouse’s response. If you partook in an open mediation, then the information that is recorded throughout the mediation is available to the court.
In the event that you partook in a closed mediation, then the events that are recorded throughout the mediation process are not completely available to the court. The only information available to the court after a closed mediation is the agreement(s) reached between you and your former spouse.
Generally, if the process of mediation proves itself to not be effective, then you and your former spouse may make the decision to see separate lawyers and move the issue to be heard by a court of law.
Click on this link to explore more articles dealing with mediations in Ontario.
For more information on open and closed mediations, contact Krol & Krol at 905.707.3370.
What are the benefits of negotiation in a family law case?
The negotiation process is extremely important in settling a case. Negotiation between the parties can help avoid the litigation process, which is often expensive and time-consuming.
There are instances where spouses simply cannot resolve the family law issues between them, or there may be a genuine question of law that only the Courts can decide. Nevertheless, in many cases there can be real benefits to proceeding with your family law matter via negotiation.
The resolution of a matter can be documented in several ways, including, but not limited to, a separation agreement (a contract between the parties outlining their various rights and obligations with respect to the other party), Consent Orders (order(s) where both parties have agreed to the terms), and Minutes of Settlement.
A case can be settled if the parties negotiate the terms of an agreement on their own, and then each retain a lawyer in Toronto to prepare a formal written separation agreement. Alternatively, the negotiation may be conducted through the lawyers, who will then prepare a formal separation agreement.
Negotiation can occur at any time during the case. In order to have an effective negotiation, lawyers and clients should fully understand the strengths and weaknesses of their case. If the negotiation fails, the information gleaned through negotiation may be useful in assisting the lawyer in preparation for the litigation process.
For more information on the negotiation process, contact Krol & Krol, Toronto divorce lawyers, at 905.707.3370.
What are my options to resolve family law issues in Toronto?
To resolve a family law issue in Toronto, your options to resolve the family law issue in Toronto include:
1. Negotiating an agreement;
2. Collaborative family law;
3. Arbitration; and,
4. Going to court (also known as litigation).
Different options are/become more appropriate depending on the circumstances of each individual case.
Negotiating an agreement on your family law issues in Toronto requires that the couple in question comes to a consensus on the terms of the divorce.
Collaborative family law is a method to obtain a legal divorce in Ontario while avoiding the court process and the uncertain outcome of taking the case to trial. In collaborative family law, the couple in question attempts to achieve a settlement that meets both of their specific needs and the needs of their children. The process requires both spouses to voluntarily sign a contract, often referred to as a participation agreement that binds each one of them to the process and states that they forfeit the rights of their lawyers to defend them in any form of litigation. There are pros and cons to this type of family law and those need to be vetted and understood prior to the signing of any participation agreement.
Arbitration in Ontario is considered to be another method of alternative dispute resolution, which is a method of resolving disputes while avoiding the courts. Arbitration in Ontario requires that both parties agree to negotiate, and on issues upon which they cannot come to an agreement, they agree to let an individual referred to as an arbitrator to make a binding decision. This means that a third party will be granted the right to review the information presented by both sides and make a legally binding decision.
Alternatively, if both spouses cannot come to an agreement on the terms of their divorce, they may present their cases in front of an Ontario judge. Ultimately, the Ontario judge then takes the positions presented before them into consideration when making a legally binding decision, referred to as a court order, on the terms of the divorce.
Should I try family law mediation?
Family law mediation may help parties resolve family law matters outsides of the court process. Family law mediation is voluntary (so both parties must agree to participate). Family law mediation can be commenced at any time by agreement of the parties, even if the parties are in the middle of the court process.
In a family law mediation, the mediators should be qualified to assist in resolving issues pertaining to the divorce process, such as child custody and access, child and spousal support as well as the division of property. In a family law mediation, family mediators who are especially qualified may aid with matters such as child protection disputes. Family mediator offices are located both at family court locations, or the parties can attend at the mediator’s office outside of the court. Some family law mediation may be provided for free or at a low cost at the court, or the parties can privately hire a mediator of their choice. If you and your spouse have agreed that you want to resolve the outstanding issues in your divorce outside of the court process, family law mediation may be a viable option.
There are certain situations in which family law mediation is not advisable or appropriate. For example, in situations where one party has historically dominated or abused the other, mediation may not be in the best interest of that party.
The solicitors at Krol & Krol have experience with family law mediation in Ontario, as well as separation agreements, minutes of settlement and obtaining court orders. For more information on whether or not the family law mediation process is appropriate for your specific circumstances, call our solicitors at 905.707.3370 to arrange a consultation.
Are the terms of a mediation in Ontario binding on the parties?
The terms of an agreement established during a mediation in Ontario are not binding until they have been incorporated into a written separation agreement or minutes of settlement, that have been signed by both parties and witnessed.
It is highly recommended that both parties obtain independent legal advice with respect to any resolution arrived at in a mediation in Ontario before finalizing any agreement or minutes of settlement. This is to ensure that the agreement or minutes of settlement are strong and less susceptible to attack. Independent legal advice is also important because it ensures that both parties fully understand their rights and obligations, as well as the effect the proposed agreement will have on their circumstances.
The terms resulting from a mediation in Ontario can also be incorporated into a binding court order.
Mediation in Ontario is a voluntary process. Both parties must agree to participate and neither party can force the other to engage in mediation in Ontario.
Mediation in Ontario can be commenced at any time (prior to the commencement of a Court Application and during the court process).
Mediation in Ontario is only appropriate in certain circumstances. In a situation, for instance, where there has been a historical imbalance of power between the parties, mediation in Ontario may not be in the interests of the less dominant party. Based on your specific circumstances, you and your family lawyer ought to determine whether pursuing mediation in Ontario is a reasonable strategy in your matter.
Mediation in Ontario usually takes place before a senior family law lawyer. While mediation in Ontario can often resolve a matter faster than the court process, there are additional costs of hiring a mediator which must be taken into account. The costs will vary depending on the mediator chosen. That being said, if a matter is resolved via mediation in Ontario, it is highly likely that this process will ultimately be less costly than the legal fees one would incur if their matter proceeded through the Courts. This however, can be a double-edged sword, as the mediator cannot force parties to resolve the matter and cannot make orders. Accordingly, the parties may pay the costs of a mediation and, if they cannot ultimately resolve the dispute with the assistance of the mediator, they may still need to resort to the court process.
The solicitors at Krol & Krol have experience with mediation in Ontario, as well as separation agreements, minutes of settlement, and in obtaining court orders. For a consultation with one of our solicitors with respect to a mediation in Ontario, call 905.707.3370 today.