Collaborative Divorce in Ontario: How the Process Works

If you and your spouse want to end your marriage without a courtroom fight, collaborative divorce may have come up. It is a way of working out the issues in meetings, with each of you supported by your own lawyer, rather than by arguing in front of a judge.

It can suit couples who can still talk and are willing to share information openly. It is not right for every situation, and it helps to know how it works and how it can fail before you commit to it.

What collaborative divorce means

Collaborative law is a process outside court where you and your spouse, with your lawyers, try to reach an agreement on the issues from your separation. The Divorce Act defines a family dispute resolution process as a process outside court, and it lists negotiation, mediation and collaborative law as examples.

That matters because parties to a Divorce Act proceeding must try to resolve the matters through a family dispute resolution process where appropriate. A lawyer acting for a spouse in a divorce must also discuss the possibility of reconciliation and encourage the client to try such a process, unless the circumstances clearly make that inappropriate. So you are likely to hear about options like this early on, whichever route you choose.

Who is involved and what you sign

At its core, collaborative law involves the two spouses and one lawyer for each. Some teams add other professionals, and the approach is described as a team approach.

Two commitments set it apart from ordinary negotiation:

• A disqualification agreement. The lawyers' retainer includes it, and both lawyers must withdraw if the matter goes to court.
• A participation agreement. You commit to full, voluntary disclosure and to the team approach.

The disqualification agreement is the feature people most often overlook. It gives everyone a reason to work toward settlement, but it also has a cost if talks fail, as discussed below.

How the process usually runs

The details vary from team to team, but the general shape is similar. You sign the agreements, share your financial information openly, identify the issues that matter to each of you, and meet together to work through options. The aim is a written settlement that you both accept.

If you reach agreement, it is usually recorded in a separation agreement. A separation agreement is a domestic contract that is unenforceable unless it is made in writing, signed by the parties and witnessed. It may cover property, support and parenting.

Settling outside court does not mean you never touch the court. A divorce is still granted by a court order. Either spouse may start a divorce case, or the spouses can file a joint application with no respondent. In a joint application, the divorce and any other order can be made only with the consent of both spouses. Before granting a divorce, the court must also be satisfied that reasonable arrangements have been made for the support of any children of the marriage.

When collaborative divorce does not work

The process can break down if one person stops sharing information, if talks reach a deadlock, or if one spouse decides they want a court decision. Because of the disqualification agreement, both lawyers must withdraw if the matter goes to court. You would then need to hire new lawyers and, in many cases, repeat some of the work. That is the main risk to weigh before you start.

Collaborative law may also be a poor fit where there is fear, pressure or a serious imbalance of power between you. Whether it is appropriate depends on your facts, and a lawyer can help you assess that.

Even a settled agreement can be challenged later in some situations. A court may set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets, debts or other liabilities, did not understand its nature or consequences, or on contract-law grounds. Full and honest disclosure is therefore not only a promise in the process; it protects the agreement itself.

What to do next

• Ask yourself honestly whether you and your spouse can communicate and share financial information openly.
• Compare collaborative law with mediation and with negotiation through lawyers, since the Divorce Act treats each as a family dispute resolution process.
• Before signing, ask a lawyer to explain the disqualification agreement and what it would mean for you if the process ended.
• Gather your financial records, such as statements, tax returns and debt details, so disclosure goes smoothly.
• Ask how the final agreement will be signed and witnessed so it is enforceable.

Frequently asked questions