Mediation Before Divorce in Ontario: When It Helps

Many separating spouses would rather settle than fight in court. Mediation is one way to do that: a neutral person helps you and your spouse talk through the issues and try to reach your own agreement.

This article explains what the law says about mediation in a divorce, what it can cost, how it fits with the court process and what to do before you sign anything.

What mediation is and when it is expected

In mediation, a neutral mediator helps you and your spouse reach an agreement. The mediator does not decide the outcome for you.

Under the Divorce Act, where appropriate, parties must try to resolve their issues through a family dispute resolution process such as mediation, and lawyers must encourage them to do so. Most parties in family cases must also attend the free Mandatory Information Program, which covers dispute resolution options.

Mediation is different from the court conferences that take place in a contested case. A case conference explores the chances of settlement and identifies which issues are and are not in dispute, and a settlement conference aims to settle or narrow the disputed issues. How mediation fits alongside those steps depends on your situation, so it is worth confirming with a lawyer.

What it costs and how safety is handled

On-site mediation is free on the day a matter is scheduled in court. Off-site mediation is charged on a sliding scale. For example, someone earning under $60,000 pays $5 to $105 an hour depending on dependants.

Mediators screen for safety throughout. If you feel unsafe or pressured, say so. Mediation is not appropriate in every situation, which is why the law says to try it where appropriate.

Going to court has its own costs. In the Superior Court, filing an application costs $214, and a separate federal $10 fee applies to any application or answer with a divorce claim. A person who cannot afford court fees can request a fee waiver, but the federal $10 divorce fee cannot be waived.

What mediation can cover

• Parenting arrangements, where a parenting plan you agree on can be submitted to the court. The court must include a submitted plan in the parenting order, but if that is not in the child's best interests it can modify the plan.
• Spousal support, which the court otherwise sets by looking at each spouse's condition, means, needs and circumstances.
• Division of property, including the equalization payment, which is one-half of the difference between the spouses' net family property, although a court can award more or less than half if equalizing would be unconscionable.
• The matrimonial home, including who will stay and who will leave.

Whatever you agree about children, the court considers only the child's best interests, with primary consideration to the child's physical, emotional and psychological safety, security and well-being. If a person with parenting time or decision-making responsibility plans to relocate, at least 60 days' notice in the prescribed form must be given to anyone else with parenting time, decision-making responsibility or contact.

Property claims also have time limits. An equalization claim must be started by the earliest of 2 years after the divorce, 6 years after separation with no reasonable prospect of living together again, or 6 months after the first spouse's death. How those limits apply while you are mediating depends on your facts, so ask a lawyer.

Good mediation depends on honest financial information. A party must correct or update any served financial document as soon as they find it is wrong. Even when you settle, gather your financial records first, because a deal built on incomplete numbers may not hold up well.

After the agreement: lawyers and the court

Ontario guidance says each party should get advice from a different lawyer before signing a mediated agreement so that it is legally binding. Do this before you sign, not after.

An agreement does not end the court steps for a divorce. Either spouse can start a divorce by application, or both can file a joint application, in which case the divorce and any other order can be made only with both spouses' consent. If the respondent files no answer, an uncontested divorce is decided on paper.

The court must still be satisfied that reasonable arrangements have been made to support any children. The divorce takes effect on the 31st day after the judgment is made. The court can make it take effect earlier if special circumstances justify it and both spouses agree and undertake not to appeal. A pending appeal delays when the divorce takes effect.

What to do next

• Ask your spouse whether they are willing to try mediation, and consider safety first.
• Collect financial records and a list of questions about children, support and property.
• Look into on-site mediation if you have a court date, and off-site options if you do not.
• Book a separate lawyer for each of you to review any agreement before signing.
• Confirm with a lawyer how your agreement will be put before the court.

Frequently asked questions