Mediation to Reach a Separation Agreement in Ontario

If you and your spouse cannot agree on parenting, support or property, mediation can be a way to talk it through without a judge deciding for you. Many people are unsure what happens in a session and whether anything agreed there actually counts.

This article explains how family mediation works in Ontario and how a mediated deal becomes a binding separation agreement.

What a family mediator does

In family mediation, a neutral mediator helps the parties negotiate their own agreement. The mediator does not make decisions, take sides or give legal advice.

In divorce proceedings, resolving disputes outside court is also encouraged by law. Under the Divorce Act, where appropriate, the parties must try to resolve matters through a family dispute resolution process, and legal advisers must encourage clients to do so unless it would clearly not be appropriate.

A separation agreement is not limited to married couples. Two people who lived together and are now living separate and apart may make a separation agreement, whether they were married or not. Separation itself needs no court order and applies to married and common-law couples, while only married couples can divorce.

The name of the written settlement depends on timing. If no court case has started, it is called a Separation Agreement. If a case has started, it is called Minutes of Settlement.

Court-connected and private mediation

Court-connected family mediation is provided by service providers under contract with the Ministry of the Attorney General. On-site mediation is free on the day the matter is scheduled in court. Off-site mediation fees may be charged on a scale based on income and number of dependants. Availability, fees and scales vary by courthouse and provider, so check locally.

Mediators screen for domestic violence at intake and throughout the process. If safety is a concern, tell the mediator early and talk to a lawyer about whether mediation suits your situation.

Preparing so mediation can work

Agreements are only as sound as the information behind them. Financial disclosure means giving the other party information and documents about your income, expenses, assets and debts. A court may set aside an agreement if, for example, a party failed to disclose significant assets or debts, or did not understand the nature or consequences of the contract. Even then, the court decides whether it is appropriate to set the agreement aside, and fairness is a relevant consideration at that stage.

The Court of Appeal for Ontario has said financial disclosure is a paramount consideration, and that the spouse who holds the assets is responsible for disclosing and valuing them. In court, disclosure is done on a financial statement: Form 13 for support-only cases, and Form 13.1 where property or debts are in issue. Some cases, such as certain child support cases where only the table amount is claimed, do not need one. A mediator may ask for different documents, so ask what they want before the first session.

• Gather income, expense, asset and debt documents before the first session.
• Think about parenting goals. A parenting plan can set out each parent's time and who makes major decisions.
• For child support, which rules apply depends on your situation. In a divorce, the Federal Child Support Guidelines set the presumptive amount as the table amount plus any special or extraordinary expenses.
• Write down questions to ask a lawyer between sessions.

How a mediated deal becomes binding

Reaching a deal in the room is not the end. Before signing a mediated agreement, each party should get advice from a different lawyer. A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed.

You do not need a lawyer to make a separation agreement, but legal advice before signing is a good idea because it can be difficult to get a court to set an agreement aside. Spouses can divide property any way they agree, and the agreement cannot easily be changed later.

Ontario guidance also says each person should understand the terms and not be pressured to sign. Take the draft home and review it before you sign. If you later need to change it, an amending agreement must also be in writing, signed and witnessed.

Some terms stay open to review. A court may disregard a provision about parenting time or decision-making responsibility if that is in the child's best interests, and it may disregard a child support provision that is unreasonable having regard to the child support guidelines. A court may also set aside a support provision or a waiver of spousal support, even if the contract says otherwise, where it results in unconscionable circumstances, the person it benefits qualifies for support from public money, or payments under the contract are in default.

What to do next

• Decide whether court-connected or private mediation fits your situation, and ask what fees apply.
• Have the written agreement reviewed by your own lawyer. A joint lawyer is not the same, and Ontario guidance recommends separating spouses each have their own lawyer.
• Sign in front of a witness.
• If support is involved, ask about filing the agreement and registering it with the Family Responsibility Office.
• If the agreement covers parenting, remember that you can ask the court to enforce parenting arrangements made in a separation agreement.
• Keep copies of your signed agreement and financial documents.

Frequently asked questions