Collaborative Law vs Mediation vs Court for Ontario Couples

When a relationship ends, you have more than one way to resolve parenting, support and property. Some couples settle privately. Others need a judge to decide.

This article compares collaborative law, mediation and court in plain terms, so you can see how they differ on control, privacy, timing and suitability.

The three routes in brief

The Divorce Act treats negotiation, mediation and collaborative law as family dispute resolution processes outside court. Court is the formal route, where a judge can decide issues if you cannot agree.

• Mediation: a neutral third party helps you talk, but does not take sides, make decisions or give legal advice.
• Collaborative law: both parties and their lawyers agree not to go to court.
• Court: a case starts with an application, and moves through conferences toward trial.

Side-by-side comparison

Ontario describes mediation as something that can be used before, during or instead of a court case, and says it can be faster, cheaper and more private than court. That is a general statement, not a guarantee for any one case.

Timing and cost

After an application is filed, the respondent has 30 days to serve and file an Answer, or 60 days if they live outside Canada and the United States. The case then moves through a case conference, a settlement conference, a trial management conference and trial. The court guide gives no fixed timelines for these steps, so how long a case takes depends on the court site, workload and the number of conferences.

For mediation, court-connected mediation is free on-site on your court day, while 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. Those amounts can change. Collaborative law involves two lawyers, so ask each lawyer how fees are likely to work.

Is anything required?

Ontario's family court guide does not make mediation mandatory before a family court case. Mediation is voluntary. The required early step in court is the Mandatory Information Program (MIP), where parties learn about dispute resolution options.

You must attend a MIP session before your first appearance or case conference, and no later than 45 days after the case starts. There are exceptions, such as where you agree on all matters or the case involves only divorce, costs, an existing agreement or order, or family arbitration. A judge can also excuse attendance if your circumstances are urgent or attending would cause you hardship.

Separately, the Divorce Act requires parties to try to resolve matters through family dispute resolution to the extent it is appropriate.

Suitability and safety

No route suits everyone. Mediators screen each person separately at intake to confirm an equal negotiating position, and screening continues throughout. Mediators must have 21 hours of intimate partner violence training. Legal advisers must encourage family dispute resolution unless it would clearly not be appropriate, for example where there is family violence.

Court may be the better fit if there are safety concerns, if one person will not share information, or if urgent orders are needed. Mediation-arbitration is another option, but it requires both parties' agreement, and the arbitration result is binding and enforceable by the court.

What to do next

• List your key issues: parenting, support, property and the family home.
• Consider how well you and the other person can communicate and share information.
• Raise any safety or power-imbalance concerns before choosing a route.
• Contact a Family Law Information Centre for information on dispute resolution and mediation referrals.
• Speak with a family lawyer about which route fits and what deadlines apply. For example, for married spouses, a court claim for an equalization payment must be started within six years of separation or two years after the divorce is final, whichever comes first. Common-law partners are not legally required to split property acquired while living together, though they may recover contributions to the other's property, sometimes through court.

Frequently asked questions