Should I negotiate with my spouse, without a lawyer?

Separation is often a very emotional journey - whether you are the one who triggered it or whether you are at the receiving end of the news, there are so many issues to consider, so many new concepts to understand (including in the area of family law) that the circumstances can quickly become overwhelming.

The answer to the question posted in the title of this post should really be considered in light of the opening paragraph. Ask yourself this:

1. are you emotionally strong enough to sit across from your spouse and negotiate the terms of your separation? Is your spouse emotionally strong enough so that any "deal" you strike would be viewed by an outsider as a fair one?

2. do you understand the law as it applies to your separation? If you think that to deal with property rights on separation, "we divide everything in half", then you do not understand this area of the law. Do you understand the difference between the law as it applies to married/separating spouses as opposed to common-law/separating spouses? For example, are you aware of the concept of "joint family enterprise"? Do you know what possessory rights are? Do you understand the concept of mobility? Does your spouse?

3.  are you sure that "all the chips are on the table" for the purposes of your proposed negotiations, meaning, that you are truly aware of your spouse's earnings, assets and debts? Do you truly know what they "have"? Did you and your spouse exchange full disclosure?

THE POINT: there is nothing preventing you from negotiating directly with your spouse. Whether that is a good idea is another issue altogether and depends on the circumstances of your case. Likely not the clean, direct answer you were looking for but there it is - would you consider asking your friend to remove your appendix? Well, the answer depends on the circumstances. If they are a doctor, you might. If they are a retired doctor who last practiced 15 years ago, you might not. If they are a gardener, you might not. If you are exceedingly stressed, you might not be in any shape to make a reasoned decision about any alternative treatment for your acute appendix so an emergency doctor should be your medical provider of choice. I think you "get our point".

Seek legal advice about legal issues, at least by way of consultation. Do not bargain your legal rights and obligations until you know what they are. It is important to negotiate on a level playing field, making sure there is no imbalance of power in discussions of any settlement. A solid, fair and lasting deal depends on it.

What is ADR?

ADR stands for alternative dispute resolution (sometimes also referred to as external dispute resolution). This term describes collectively various approaches for resolving disputes between two (or more) parties without having to use the court system.

Alternative dispute resolution encompasses dispute resolution mechanisms such as mediation, arbitration, mediation/arbitration, negotiation, collaborative law and other subcategories of dispute resolution. 

ADR has become an increasingly viable and popular method of addressing disputes, including family law disputes, for a number of reasons. The administration of justice, including in Ontario, has faced increasing pressure from a number of fronts. Rapid urban expansion has meant that courts are facing more and more litigants every day. In the meantime, there is competition for financial resources, including from healthcare. As courts become busier and busier, alternative methods of addressing disputes become increasingly attractive. More and more litigants are turning to mediation and arbitration, for example, to sort out their family law problems.

In summary terms, mediation is a process where spouses meet with a third party who is skilled at facilitating negotiation between them. Mediation may be open or closed. In closed mediation, nothing said in the context of the negotiations with the mediator can be repeated in either an existing or a later court proceeding.  In open mediation, the reverse is true and either party may request that the mediator issue a report summarizing the process and outcome of the mediation. Either party may then rely on this report before the court.

Arbitration is essentially "private court". The parties to an arbitration agree that a person selected by them (the arbitrator) will make a binding decision on the issue(s) put before him or her. In Ontario, the arbitrator is bound by the same law that a judge would be bound in making his or her decision for the parties.

Mediation/arbitration is a hybrid of the two processes described above. For a period of time, the parties attempt mediation. Based on specific, agreed-to terms, the mediation ends if the parties are unable to reach a resolution and the mediator then puts on an arbitrator's hat. This means that he/she then convenes a formal hearing of the outstanding issue(s) and after considering evidence and submissions, makes a binding decision for the parties.

For further information about how ADR may be of assistance to you in a family law dispute, speak to a family law lawyer.

Artwork: Kees Van Dongen

Why Court is not always the solution.......

This is the age of media. An average person's view of the world is greatly affected by the media. This includes the public's perception of court.

TV teaches that legal battles are waged in the court room, with fist-pounding lawyers and finger-wagging judges. Reality is not what you see on TV. What you also do not see is the tremendous cost involved in conducting a court case, from start to finish.

A family court proceeding in Ontario can be an expensive, drawn-out process, for a variety of complex reasons over some of which you will have control and many of which you won't. Going to court is not the panaceum you may think it is. There are cases where the involvement of a judge is necessary to address differences in the legal positions of the parties. Sometimes, the intervention of a judge is required to address an emergency situation like the abduction of a child or non-payment of support.

Overall, settlement is always the preferable solution, for all concerned, assuming the parties both understand their legal rights, are making the bargain freely and without duress, understand the basis of the bargain through solid disclosure and have had an opportunity to get legal advice. Settlement polarizes the parties less than does a court case, where there is usually a clear winner and a clear loser. In a settlement, the parties are the authors of the terms of their agreement. This is the opposite of what happens in Court (other than in the context of a case which settles through Case Management) ~ a stranger to your family (the judge) makes decisions which may very well affect you and your children for the rest of your lives.

For the reasons above (and many other reasons which a family law lawyer can provide you) choose settlement if you can.

Some mediators/arbitrators in Ontario:

Stephen Grant and Gerry Sadvari
Herschel Fogelman - Basman Smith
Jennifer Shuber - Basman Smith
Melanie Kraft - Epstein Cole
Ken Maynard