What If a Collaborative Family Law Process Breaks Down?

Collaborative family law is a way to settle separation issues without going to court. You and your spouse each hire a lawyer, and everyone commits to working things out at the table. Most people choose it hoping to keep the process calmer and more private.

But sometimes talks stall. This article explains what generally happens when a collaborative process ends without an agreement, what that means for your lawyer, and how to move to court if you need to.

How the collaborative promise works

In collaborative family law, both parties and their lawyers agree not to go to court. That agreement is the heart of the process. It gives everyone a reason to keep negotiating, because the lawyers are not preparing for a fight.

Any paperwork you signed at the start is worth reading closely, since the details of what happens on a breakdown depend on your situation. A lawyer can confirm how your agreement applies.

The lawyer withdrawal rule

If no agreement is reached you can still go to court, but you will need to hire a different lawyer. This applies to both sides. Your collaborative lawyer will not act for you in a court case against your spouse.

This rule is why the process should be considered carefully before you start. If it fails, you pay for a new lawyer to learn your file. Some information shared in the process may help the new lawyer, but whether and how it can be used depends on your participation agreement and the facts.

Starting in court after a breakdown

The court depends on what you are asking for. The Superior Court of Justice hears divorce, division of family property, claims about the family home, trust and unjust enrichment claims, parenting time and decision-making, child support and spousal support. The Ontario Court of Justice hears parenting, child and spousal support, and enforcement of support, but not divorce or property division.

The Family Court Branch of the Superior Court is in 25 locations, including Barrie, Lindsay and Peterborough, and residents of those locations go to their local Family Court Branch. It is the only court in Ontario that can hear all types of family law cases.

A case usually starts in the municipality where you or your spouse lives. For parenting time or decision-making matters it may instead start where the children live. If you are unsure, call the family court office in your area.

Settlement still matters after a breakdown

Even if collaboration ends, you are not expected to stop trying to settle. For married spouses under the Divorce Act, parties shall, to the extent appropriate, try to resolve the matters that may be the subject of an order through a family dispute resolution process.

If you did reach agreement on some issues, such as a parenting schedule, those points can be carried forward. Under the Divorce Act, the court shall include in a parenting order any parenting plan submitted by the parties unless it is not in the child's best interests. An informal parenting plan can be difficult to enforce, so ask a lawyer how to put partial agreements in a form a court can recognize.

What to do next

• Find your participation agreement and read the sections on ending the process.
• Ask your collaborative lawyer what documents and notes you can take with you.
• List which issues are settled and which are not: parenting, support, property, the home.
• Decide which court fits the issues you still need decided.
• Meet a new lawyer before you start any court step, since your collaborative lawyer cannot act in court for you.
• Keep your financial records organized so the new lawyer can start quickly.

Frequently asked questions