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Can we resolve our issues without going to court?

You may need to start a family law court case to resolve your legal issues after you separate or divorce. But there are other options to help resolve legal issues without going to court.

You can discuss your issues with your partner on your own, or with the help of someone you both trust. You can get a lawyer to help you. There are also family law professionals who can help you resolve your issues without going to court.

You can use any of these options whether you are married or in a common-law relationship.

Make an agreement with or without a lawyer

If you and your partner agree on your family law issues you can put what you've agreed on in a separation agreement. This is a written contract that you and your partner make.

You don't need to have a lawyer to make a separation agreement. But it's a good idea to have your own lawyer.

A lawyer can:

  • give you independent legal advice
  • help make sure that your separation agreement follows the rules

If you can't afford to hire a lawyer to help you with everything, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with only certain things, such as giving you advice on a draft agreement or helping to draft an agreement for you.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

Get help from a family law professional

If you and your partner can't agree on your issues, you can get help from a family law professional. These are people who work with both of you to help you reach an agreement. In some cases, they can also make a decision for you. Some family law professionals are hired by both of you and are neutral, which means they do not take sides and work for both of you.

Family law professionals can work in:

  • mediation
  • arbitration
  • mediation-arbitration
  • collaborative family law
  • parenting coordination

These processes are sometimes called alternative dispute resolution (ADR). A family law professional may also be called an ADR professional or a family law dispute resolution professional.

ADR is voluntary. So you can't be forced to agree to any of these processes.

Try more than one option

If you decide to try one option to resolve your issues, you may not have to continue with it, if it isn't helping you. Sometimes you can use more than one option or switch from one to the other.

For example, you might start off trying to negotiate on your own with your partner, and then decide to get collaborative family lawyers to help.

Depending on the type of process you are using, it may be harder to stop the process. For example, you need your partner to agree to pause your court case if you want to try to reach an agreement with the help of a mediator.

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1. Decide if you should try ADR

Look at your situation to decide if you and your partner should try alternative dispute resolution (ADR).

Many people chose ADR because it also allows you to control the process more than going to court. For example, you can decide:

  • The type of family law professional that you want to use. You can even decide who exactly you will work with. This is different from going to court, where you don't get to pick your judge. You may also have different judges dealing with your case at different times. This can mean that you spend more time explaining your situation each time you meet with a different judge.
  • What timeline fits your schedule. For example, you may choose to meet with a mediator who is available in the evenings so that you can meet with them after work.
  • How your lawyers, if any, will be involved.
  • Who will pay for the costs.

You and your partner must agree to use the same process and you must agree on the details.

ADR can sometimes work better than going to court because:

  • it can be faster
  • it can be cheaper
  • it can be less stressful
  • it is more private than going to court

You may also get more time to discuss your issues when you use ADR. You may be able to discuss issues that you wouldn't be able to talk about in court, for example, how you and your partner can help your child deal with your separation.

There isn't one option that is best for everyone. The best option to resolve your issues depends on things like your relationship with your partner, how complicated your legal issues are, and your goals.

There are some situations where ADR may not be the best choice. For example, if:

  • you are afraid of your partner because of a history of partner abuse
  • there are serious mental health or drug abuse issues
  • you can't talk to your partner even with help
  • you can't work together with your partner even with help

In any of these situations, it may be better to start a family law court case to resolve your issues.

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2. Choose the best ADR option for you

Learning about each alternative dispute resolution (ADR) option can help you pick the one that works for your family:

Some ADR options allow you to have more control over the result. You and your partner have the most control in negotiation, collaborative family law, and mediation. This is because you don't give someone else the power to decide things for your family.

With mediation-arbitration and parenting coordination, someone else can make a final decision, usually after you and your partner have tried unsuccessfully to make an agreement. In arbitration, you agree to let an arbitrator decide for you.

You cannot use ADR to get a divorce. If you're legally married and want to end your marriage, you must apply to the court for a divorce. But you and your partner can agree to get a divorce and decide who applies to court to get the divorce.

Get help choosing an option

Your local Family Law Information Centre (FLIC) can inform you about your options and refer you to an ADR professional. There are FLIC offices in every Ontario courthouse that deals with family law.

All of them have free pamphlets on topics such as separation and divorce, the court process, and family mediation. Many also have staff, called Information Referral Coordinators, who can give you information and refer you to community agencies and legal services. Some also have lawyers, called advice counsel, from Legal Aid Ontario who can meet with you during specific hours.

A FLIC can also tell you about the Mandatory Information Program (MIP). This program has information about the court process and ways to solve your issues without going to court. People involved in a family law court case usually have to go to a MIP. But you can go to one to learn about your options even if you don't have a court case.

If you can't go to a MIP you can get similar information online through the Family Law Information Program (FLIP).

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3. Find an ADR professional

After you and your partner have agreed on the alternative dispute resolution (ADR) option that you want to use, you need to find a professional who works in that area:

Your lawyer may also be able to recommend a family law professional.

Or you may be able to find a list of local professionals through your local Family Law Information Centre (FLIC).

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4. Make an ADR agreement with your partner

You and your partner must agree on the details of the ADR process. It is a good idea to put your agreement in writing before you start the process. This document can be called different things, such as a participation agreement, arbitration agreement, or agreement to mediate.

The agreement can include:

  • the role of the family law professional who is helping you resolve your issue
  • how your lawyers, if any, are involved
  • the issues you cannot agree on
  • how to give documents to your partner or the family law professional
  • how to end the process
  • who pays

The family law professional who is helping you usually drafts the agreement and includes details about you, your partner, and your issues.

Before signing the agreement:

  • Read it carefully. If you have a lawyer, you should have them read it as well. You need a lawyer if you are agreeing to arbitration or mediation-arbitration.
  • Make sure that it includes all the important details about the process.
  • Make sure you understand who can end the process, how it can end, and what happens at the end.
  • Ask any questions you have.
  • Make sure that you understand the agreement.
Reviewed: 
February, 2016

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