Family Mediation Before Divorce in Ontario: How It Works

Many couples would rather settle the terms of a separation together than have a judge decide them. Family mediation is one way to do that. A neutral person helps the two of you talk through the issues and look for solutions you can both accept.

This article explains what a mediator does, how sessions generally run, where to find mediation in Ontario, and what to think about before you sign anything. It is general information, and a lawyer can tell you how it applies to your situation.

What a family mediator does

A mediator is a neutral third person. The mediator does not take sides and does not decide who is right. Instead, the mediator keeps the conversation organized, helps each person explain what matters to them, and helps you test possible solutions. The decisions remain yours.

That is the main difference from arbitration, where an arbitrator makes a decision. Arbitrators cannot grant a divorce or annul a marriage. A mediator cannot either; a divorce is granted by a court when the marriage has broken down.

Ontario courthouses offer mediation on parenting, support and property. Those are the issues most separating couples need to settle.

Where to find mediation in Ontario

Even a fee waiver for court fees does not cover fees paid to mediators, so ask about mediator fees before you start.

How sessions usually run

Every mediator works a little differently, but sessions often follow a similar pattern.

• Intake: the mediator asks about the issues, your goals and any safety concerns before joint sessions begin.
• Ground rules: the mediator explains how the sessions will work and how information will be handled.
• Information sharing: you each exchange the financial and family information needed to make decisions.
• Options: you discuss possible solutions on parenting, support and property.
• Written summary: if you reach agreement, the terms are usually written down for you to review, ideally with your own lawyer.

Financial information is the foundation. In Ontario family cases, the Court of Appeal has called the duty to disclose financial information the most basic obligation in family law. A property settlement based on incomplete numbers can be hard to rely on. Equalization depends on values at the date of marriage and the date of separation, and retirement savings and TFSAs are counted.

Safety matters too. If you feel unsafe or pressured in a room with your spouse, tell the mediator or a lawyer before agreeing to joint sessions. Mediation may not suit every situation.

Are mediated agreements binding?

The answer depends on what you sign and how. A conversation in a mediator's office is not the same as a signed written agreement, and a verbal understanding can be hard to prove. Because of this, ask the mediator what document you will receive and whether it is meant to be legally binding. A lawyer can confirm the effect of any particular agreement.

Some matters need extra steps no matter what you agree. A divorce still has to be granted by a court, which must be satisfied that there is no possibility of reconciliation, no collusion, and that reasonable arrangements have been made for the support of any children of the marriage. A court can order child support and spousal support under the Divorce Act.

Property terms can matter a great deal. Spouses can agree in writing to exclude certain property from equalization, which is a good reason to have a lawyer review the wording first. For a pension, the order or agreement must state the valuation date, name the plan, and give the spouse's share as a dollar amount or a percentage not over 50%. Mistakes in these details can cause delays.

Mediation and the court process: what to do next

If you start a family court case, the Mandatory Information Program (MIP) is the first step and both parties must attend, whoever started the case. There are exceptions, for example where both parties consent to the order sought, the only claims are for divorce, costs, or an order based on an existing agreement or order, or you have already attended. It is offered at family court locations or online through providers. Family Law Information Centres can help reschedule the MIP.

A property claim must go to court within six years from the day you separated or two years from the day your divorce is final, whichever comes first. How mediation fits with that time limit depends on your situation, so it is worth confirming with a lawyer. If you are served with a court application, the answer is generally due 30 days after service, or 60 days if the respondent is outside Canada and the United States.

• Decide which issues you want help with: parenting, support, property, or all three.
• Gather your financial records before the first session.
• Ask the mediator about fees, process and the written document you will receive.
• Have a lawyer review any agreement before you sign it.
• Keep track of court deadlines while you mediate.

Frequently asked questions