Mediation in an Ontario Divorce: What to Expect

If you and your spouse are separating, you may be hoping to sort out parenting, support and property without a long court fight. 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 how mediation fits into an Ontario divorce: whether you have to try it, what it can cost, what to expect, and how an agreement reached in mediation connects to the court process.

Is mediation mandatory in Ontario?

Not in the sense that every couple must sit down with a mediator. The Divorce Act says that, where appropriate, parties must try to resolve their issues through a family dispute resolution process such as mediation. Lawyers must also encourage their clients to do so.

The words "where appropriate" matter. Whether mediation is appropriate depends on your situation. Mediators screen for safety throughout the process. If you are worried about your safety or about pressure from your spouse, raise it early with the mediator or a lawyer.

Separately, most parties in family cases must attend a free Mandatory Information Program (MIP). It covers the court process, dispute resolution options and the effects of separation on children and adults. The MIP is an information session. It is not mediation.

How mediation works and what it can cover

In mediation, the mediator does not decide for you. Their role is to help you both identify the issues, exchange information and explore options. Typical topics include parenting arrangements, child support, spousal support and dividing property.

Some of those topics follow legal rules that are useful to know before you start:

• Parenting: a court deciding parenting orders considers only the child's best interests, with primary consideration to the child's physical, emotional and psychological safety, security and well-being.
• Spousal support: a court considers each spouse's condition, means, needs and other circumstances, and does not consider misconduct in relation to the marriage.
• Property: the spouse with the smaller net family property is entitled to one-half of the difference between the two, although a court can award more or less than half if equalizing would be unconscionable.

Knowing the general rules helps you judge whether a proposal in mediation is in the range a court might consider reasonable. A lawyer can tell you how they apply to your facts.

What mediation costs and where it happens

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.

Private mediators may set their own arrangements, so ask about costs and process before you start.

Turning a mediated agreement into something that works

Reaching agreement in mediation is not the end. Ontario guidance says each party should get advice from a different lawyer before signing a mediated agreement so that it is legally binding. A lawyer can check that you understand what you are giving up and that the terms are clear.

An agreement can then feed into the court process. If you file a joint application, the divorce and any other order can be made only with both spouses' consent. If you have agreed on parenting, a parenting plan is not required, but if the parties submit one the court must include it in the parenting order, unless that is not in the child's best interests, in which case the court can modify it.

An uncontested divorce is decided on paper by a judge based on the filed documents. The affidavit must give the child support arrangements and financial information. If you have agreed on child support, the court must still be satisfied that reasonable arrangements have been made, or it delays the divorce.

What if mediation does not work?

Mediation can narrow the issues even when it does not settle everything. If an answer is filed in court, a judge must hold at least one conference, subject to some exceptions. 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. So the work you do in mediation often carries forward.

What to do next

• List the issues you need to resolve: parenting, support, property and the home.
• Gather financial information, since support and property discussions depend on it.
• Tell the mediator about any safety concerns before sessions begin.
• Ask what the mediation will cost and whether it is on-site or off-site.
• Book independent legal advice before signing anything that comes out of mediation.
• Attend the Mandatory Information Program if it applies to your case.

A lawyer can explain how a proposed settlement compares with the legal rules and help put it in writing.

Frequently asked questions