Should we try to settle through lawyers, or does this need to go to court?

Starting a case does not mean a trial

Filing an application opens a file with the court; it does not commit you to a trial. The Divorce Act's section 7.3 asks parties to try to resolve issues through a family dispute resolution process where appropriate, and lawyers have a matching duty under section 7.7 to discuss options and encourage settlement. Most family cases in Ontario settle before trial, many well before it.

Negotiation and litigation are not opposites here — lawyers often negotiate while a case is technically proceeding through conferences, using the court's timelines as a backstop rather than the goal.

How lawyer-to-lawyer negotiation works

Each of you retains your own lawyer, who advises you on your legal position and exchanges offers, financial disclosure and drafts with the other side. It can happen with no court case at all, or in parallel with one. A negotiated deal becomes a separation agreement once it is written, signed and witnessed under section 55 of the Family Law Act.

This route works best where disclosure is honest, neither of you is negotiating from fear, and the gap between your positions is a matter of numbers and terms rather than trust.

When court is the right route

Some situations genuinely need a judge: a spouse who will not disclose, will not negotiate at all, or where safety, a withheld child or moved assets require an order now rather than a negotiated compromise. A contested case runs through conferences, motions for interim relief, and — if nothing settles — a trial, with a judge deciding what negotiation could not.

Court is also simply the default if your spouse refuses to engage. You cannot force a negotiation any more than a mediation, and a case sometimes has to be started to bring the other side to the table.

Deciding between negotiation, mediation and court

Where both of you can talk and trust each other's disclosure, some couples choose family mediation instead of lawyer-to-lawyer negotiation — a neutral mediator helps you reach terms together, with your own lawyers advising before and after. That cooperative route is covered on its own in the Mediation Centre; it fits a different situation than the adversarial track this centre describes, and is worth a look if safety and disclosure are not in question.

Where they are in question, or where a spouse refuses to engage in any voluntary process, court remains the route that can compel disclosure, protect a child, and eventually decide.

The Dispute Resolution Officer and other middle options

Some Ontario courthouses run a Dispute Resolution Officer program: an experienced family lawyer conducts an early, neutral case conference aimed at narrowing the issues and testing settlement before the file goes further into the litigation process. It sits between negotiation and a fully contested case.

Whichever route you take, the Divorce Act's disclosure duty and its expectation that you try to resolve issues where appropriate apply throughout. Choosing court on one issue does not prevent settling the rest.