Collaborative Family Law in Ontario: How the Process Works

If you are separating and want to settle without a courtroom, collaborative family law is one option. It keeps the negotiation between you, your spouse and your lawyers.

This article explains the general idea, how it differs from mediation, what happens if it does not work, and when it may not be suitable.

What collaborative family law is

In collaborative family law, both parties and their lawyers agree not to go to court. The Divorce Act includes collaborative law, along with negotiation and mediation, in its definition of a family dispute resolution process, meaning a process outside court.

The details of the agreement you make and how meetings are run can vary, so ask your lawyer to walk you through the process before you decide to take part.

Many people look at a process like this because they want to keep decisions about parenting, support and property in their own hands rather than leaving them to a judge. Whether it suits you depends on your circumstances, how well the two of you can talk, and whether you both want to take part.

The usual steps

While practice varies, the process generally follows a pattern. Each of you retains a lawyer who works in this way, and you all agree not to go to court. Then you share financial information, discuss parenting, support and property, and work toward a written agreement.

• Each person chooses a lawyer trained in the collaborative approach.
• Everyone agrees not to go to court.
• You exchange the financial and family information needed to make decisions.
• You meet, negotiate and record what you agree on.
• Your lawyers help put the agreement into writing.

How it differs from mediation

Family mediation in Ontario is voluntary. The mediator is a neutral third party who does not take sides, make decisions or give legal advice. Closed mediation discussions and documents cannot be used in court, with limited exceptions such as child safety concerns. Mediation is closed unless both parties agree it will be open.

Ontario says mediation can be used before, during or instead of a court case and can be faster, cheaper and more private than court. Collaborative law is a separate process, built around lawyers who commit to staying out of court.

Cost is another point to compare. Court-connected mediation is free on-site on your court day. Off-site mediation fees use a sliding scale based on income and dependants; for example, someone earning under $60,000 may pay $5 to $105 per hour. Mediation-arbitration is also possible, but it requires both parties' agreement, and the arbitration result is binding and enforceable by the court.

If talks break down

If no agreement is reached, a party can still go to court but must hire a different lawyer. This is a real cost to weigh at the start, because you would need to find new counsel.

A court case starts with an application, and the respondent has 30 days to serve and file an Answer, or 60 days if they live outside Canada and the United States. Parties must generally attend a Mandatory Information Program session before their first appearance or case conference, and no later than 45 days after the case starts. Exceptions exist, including where you agree on all matters or a judge excuses you for urgency or hardship.

Where you start the case depends on where you live. The Family Court Branch of the Superior Court of Justice (Unified Family Court) sits in 25 locations, including Barrie, Lindsay and Peterborough, and all family law issues can be heard there. Outside those locations, you start in either the Superior Court of Justice or the Ontario Court of Justice, depending on the claims. Generally, you start in the municipality where you or your spouse lives, though if parenting time or decision-making responsibility is involved, the municipality where the children live may apply instead.

After the pleadings, a case moves through a case conference, a settlement conference, a trial management conference and then trial. The court guide gives no fixed timelines for these steps.

When it may not suit you

The Divorce Act says parties must try to resolve matters through family dispute resolution to the extent it is appropriate. Legal advisers must encourage it unless it would clearly not be appropriate, for example where there is family violence.

Mediators screen each person separately at intake to confirm an equal negotiating position, and screening continues throughout. Mediators must also have 21 hours of intimate partner violence training. If safety or a power imbalance is a concern, tell your lawyer first. The Victim Support Line is 1-888-579-2888.

What to do next

• List what you need to resolve: parenting, support, property, debts.
• Ask whether both of you are willing to commit to staying out of court.
• Ask a lawyer what happens to your file if the process ends.
• Visit a Family Law Information Centre for information on alternative dispute resolution and mediation referrals.

How all of this applies depends on your situation, so it is worth confirming your options with a lawyer before you decide which route to take.

Frequently asked questions