How Family Mediation Works for Separating Couples in Ontario

Mediation is a way for separating partners to work out issues such as parenting, support and property with the help of a neutral person, usually without a judge deciding for them.

This article walks through how mediation generally works in Ontario, what a mediator can and cannot do, and what to consider before and after a session. Details vary by provider and courthouse, so confirm specifics when you book.

What mediation is, and what it is not

Ontario describes mediation as a negotiation between two people with help from a mediator. The mediator does not take sides, make decisions or give legal advice, and does not take the place of a lawyer.

That means a mediator will not tell you who is right or order a result. You and the other person make the decisions. It is different from arbitration, where a third person decides.

Family arbitration has its own rules. An award is enforceable only if the arbitration agreement is in writing and complies with the regulations, each party receives independent legal advice before making the agreement, and the Arbitration Act, 1991 requirements are met. An agreement to arbitrate a family dispute is unenforceable unless it is entered into after the dispute has arisen. For a secondary arbitration under a separation agreement, court order or earlier award, the parties do not need independent legal advice again. An award based on religious principles is not a valid family arbitration award.

How a mediation generally unfolds

• Intake and screening: the mediator screens both parties at intake and throughout the process to make sure both are in an equal negotiating position.
• Negotiation: the two of you discuss the issues with the mediator's help.
• Write-up: the mediator writes up what the parties agreed.
• Legal advice and signing: Ontario advises each party to get advice from a different lawyer before signing, to make the agreement legally binding.

The exact length, number of sessions and format differ between mediators and services. Ask how your provider runs things before you start.

Safety and power imbalances

Screening matters because mediation works best when both people can speak freely. Court-connected mediators must have 60 hours of family mediation training and 21 hours of intimate partner violence education or training, including screening for intimate partner violence.

Under the Divorce Act, parties must try to resolve matters through a family dispute resolution process to the extent that it is appropriate. This is a process outside court, such as negotiation, mediation and collaborative law. A legal adviser must encourage it unless the circumstances make it clearly inappropriate, for example where there is family violence. If you are worried about your safety, tell your lawyer and the mediator before any session.

Cost and where to find it

Court-connected on-site mediation is free on the day a party's matter is scheduled in court. Off-site mediation may carry user fees on a scale based on income and number of dependents. Rates and hours vary by provider, so ask directly.

Family Law Information Centres at family courts give information about mediation and referrals. Staff give information, not legal advice.

If a court case is under way, the clerk at a first appearance in the Ontario Court of Justice refers the parties to information and to alternatives such as mediation. At a conference, a judge may refer issues to alternative dispute resolution if the parties consent.

If you tried family mediation and a court case continues, a judge may in some situations order a combined case and settlement conference. Conditions include required financial disclosure having been provided, no temporary-order motions pending or contemplated, and each party filing Form 17G.

After you reach an agreement

Once the mediator has written up what you agreed, the document may become a domestic contract, such as a separation agreement. A domestic contract is unenforceable unless it is made in writing, signed by the parties and witnessed.

A court may, on application, set aside a domestic contract or a provision in it. Grounds include a party's failure to disclose significant assets and a party not understanding the nature or consequences of the contract. That is one reason complete financial information and legal advice before signing matter.

A party to a domestic contract may file it with the clerk of the Ontario Court of Justice or the Family Court so that its support provisions can be enforced. Whether that step suits your situation depends on the facts, so it is worth confirming with a lawyer.

What to do next

• List the issues you want to resolve: parenting, support, property or others.
• Gather financial documents such as income information, debts and assets.
• Tell the mediator about any safety concerns at intake.
• Plan to get advice from a lawyer before signing, since Ontario advises each party to use a different lawyer to make the agreement legally binding.
• Ask the provider about fees and scheduling.

A lawyer can explain your rights before mediation starts and review the write-up afterwards.

Frequently asked questions