Caskey Family Law

Process Choices

When a couple separates, whether they have been married or living “common law,” there are certain arrangements that need to be made, such as:

  • Parenting of children
  • Financial arrangements for the family (child and/or spousal support)
  • Property division
  • Dealing with the matrimonial home.

Most couples confirm these arrangements in a Separation Agreement, which is a legally binding document prepared by lawyers.

There are several ways to do this.

Process Choices

k

Kitchen Table Negotiations

Some couples are able to discuss and negotiate issues directly between themselves. It is still important for each spouse to retain a lawyer who can provide independent legal advice and prepare a legally binding Separation Agreement.

Collaborative Practice

Collaborative Practice is an out-of-court resolution process for separating and divorcing couples. With an emphasis on full disclosure, respect, and open communication, this approach is client-directed and family-focused.

Read Details

Each spouse has his or her own lawyer who has specialized training. The spouses and lawyers follow an established settlement process using an interest-based negotiation model.

The steps of Collaborative Practice are:

  • Identify what needs to be discussed in the process.
  • Gather all of the necessary information including financial and legal information.
  • Identify interests and goals (what is truly important to each party).
  • Create various settlement options.
  • Evaluate and select the option that works best for both parties and prepare a Separation Agreement reflecting the agreed upon terms.

In Collaborative Practice, the spouses and lawyers work through these steps together, often in the same room. The collaborative lawyers’ commitment to negotiating outside of court is formalized by their obligation to withdraw if either of the spouses decides to go to court.

The Collaborative process allows for the integrated involvement of financial professionals (financial planners, accountants and valuators) who streamline the gathering and analysis of financial documentation and add value to brainstorming sessions during which options are generated.

The Collaborative process also allows for the integrated involvement of family professionals (parenting mediators, neutral facilitators, coaches and child specialists) who provide a wealth of information and support to ensure that children are protected from conflict and are assisted with the transition to the new family structure. They also help the process run smoothly by facilitating meetings and helping to maintain constructive communication.

Mediation

In mediation, a couple works with a neutral facilitator who helps them discuss and negotiate the issues arising from their separation.

Read Details

Many mediators use the same proven settlement process that is used in the collaborative process called interest based negotiation. Some mediators use a more “rights based” approach.

Most often in mediation, the spouses work directly with the mediator without lawyers present. If necessary, the lawyers may be involved in the mediation sessions.

Regardless of whether lawyers are present at the session, each spouse needs to have his or her own lawyer to receive “independent legal advice” during the process. It is best to obtain independent legal advice early on in the mediation process.

Mediation also allows for the integrated involvement of financial and family professionals.

Traditional Lawyer-Assisted Negotiation

In traditional negotiation, each spouse retains his or her own lawyer. The first step is often the exchange of financial documentation. The lawyers often exchange settlement proposals and counter-proposals.

Read Details

When the issues are narrowed, there may be a four-way settlement meeting. Often the parenting issues are mediated by a parenting specialist/mediator, while the financial issues are negotiated through the lawyers. If a negotiated settlement is not achieved, one of the lawyers may start a court application.

Mediation / Arbitration

Some people choose to work with a mediator who will become an arbitrator if a negotiated agreement cannot be reached. This means that the mediator can become like a private judge, hear evidence and submissions, and then make a decision that is binding on the spouses.

Arbitration or Litigation

When a couple is unable to reach agreement on one or more issues, it may be necessary to have a Judge or arbitrator make a final decision.

Read Details

The family court system in Ontario is case managed and designed to encourage early settlement. The first stage of a court proceeding is a Case Conference in which the court ensures that financial disclosure is being exchanged. The Case Conference is often followed by motion or many motions to obtain necessary information and interim financial and parenting arrangements. The next conference held is a Settlement Conference, in which the Judge attempts to assist the couple in settling the issues in dispute. Most cases result in settlement, often while waiting at the courthouse. Very few cases proceed all the way to trial.

Arbitration is similar to litigation, except that the person making the decision is an experienced family law lawyer hired by the spouses to make a decision. The ruling of an arbitrator is binding in court.

Contact Andrea

Andrea believes that with the right team of professionals, you can make wise decisions to protect what is most important to you and your family, so you can move forward with your life.