Mediation After Separation in Ontario: How It Works

If you have separated and you and your former partner cannot yet agree on parenting, support or property, mediation is often the first option people hear about. It is a way to talk through the issues with a neutral person helping, instead of having a judge decide.

Two questions come up again and again: what is kept private, and does the result actually bind you? This article explains how mediation generally works in Ontario and what to confirm before you start.

What mediation is and when the law expects it

In mediation, a neutral person helps both of you look for solutions. The mediator does not decide the outcome. You stay in control of what, if anything, you agree to.

Under the Divorce Act, people in a divorce proceeding must try to resolve their issues through a family dispute resolution process, such as negotiation or mediation, where appropriate. Reaching an agreement is not required before you can go to court. If you cannot agree on decision-making responsibility or parenting time, a judge decides based on the children's best interests.

Where mediation happens in Ontario

There are two common routes, and the cost differs.

If you start a contested family court case, both spouses or parents must attend the Mandatory Information Program as the first step. It is not required where both agree to the order being requested. Services and court locations vary by municipality, so check what your local courthouse offers.

Is mediation confidential?

This is worth asking directly before the first session. Whether what you say can be used later, and what the mediator may have to report, depends on the mediator's rules and the paperwork you sign at the start. Do not assume everything is private.

Ask the mediator for their confidentiality terms in writing, and ask a lawyer if you are unsure what they mean for your situation.

Is the result binding?

Reaching a verbal understanding in the room is not the same as having a finished legal agreement. A written agreement on child support, parenting arrangements or spousal support must be signed by both parents or caregivers in front of a witness. A lawyer or a mediator can help prepare it.

Marriage contracts and cohabitation agreements can deal with property, support and where people live, but they cannot decide parenting or decision-making for children. In a Divorce Act case, the court must include a parenting plan submitted by the parties in its order, but it may change the plan if it is not in the child's best interests.

If you want the Family Responsibility Office to enforce support terms, a domestic contract must be filed with the Ontario Court of Justice or the Superior Court of Justice and then registered with the office.

Protecting children and your safety

Under the Divorce Act, the parties to a proceeding must, as far as they are able, protect children from conflict arising from the proceeding. How this applies if you are unmarried or not seeking a divorce depends on your situation, so it is worth confirming with a lawyer. Children are not expected to choose between their parents and should not be included in discussions about money.

Mediation may not suit every situation. Courts must consider family violence when making parenting orders. If you have safety concerns, speak to a lawyer or the police before agreeing to sit down with the other person. If you are in danger, call 911.

What to do next

• List the issues you need to settle: parenting, support, property, the family home.
• Gather financial documents such as pay information, account statements and pension details.
• Ask any mediator about confidentiality, cost and what happens if you do not reach agreement.
• Do not sign anything until you understand it. Consider having a lawyer review a draft.
• Make sure the final agreement is in writing, signed by both of you and witnessed.

Frequently asked questions