– Out-of-Court Options for Resolution –

Issues and Domestic Contracts

If you are planning to marry or move in with someone (or have already done so), you may wish to consider making arrangements to deal with financial matters and other issues that might arise in the event of a future breakdown of your relationship.

If you separate, you may need to think about the following issues:

  • A Parenting Plan for your children (including a residential, time-sharing schedule)
  • The Disposition of the Home you are living in together (whether it will it be sold or
    one person will buy the interest of the other, and when this would happen)
  • Financial arrangements for the family’s living expenses (child and spousal support)
  • The sharing of the property you have accumulated

The result of a successful family negotiation is a Domestic Contract, which is a legal document signed by both spouses (married or unmarried), after their family law lawyers have provided independent legal advice. The Domestic Contract will detail the agreed upon arrangements:

  • Cohabitation Agreement: created during or in anticipation of living together, and may become a Marriage Contract if the parties later marry
  • Marriage Contract: created during or in anticipation of a marriage
  • Separation Agreement: created after the parties separate

The processes below are available to negotiate the arrangements that will appear in your Domestic Contract (click on any one to drop down to that section):

Kitchen Table Negotiations

Some couples are able to discuss and negotiate issues directly between themselves. It is still important for you and your spouse to retain a lawyer for independent legal advice and to prepare a legally enforceable Domestic Contract (such as a Separation Agreement).

Traditional (Lawyer-to-Lawyer) Negotiation

In a traditional negotiation, both you and your spouse retain your own lawyers. The first step is often the exchange of financial documentation. After consulting with their clients, the lawyers then exchange settlement proposals and counterproposals.

Once the issues are narrowed, there may be a four-way settlement meeting (held in one room or separate rooms, in-person or by Zoom conference). Often the parenting issues are mediated by a parenting specialist/mediator (such as a social worker or psychologist trained and experienced in family law negotiation), while the financial issues are negotiated through the lawyers. If a negotiated settlement on all of the issues is not achieved, you and your spouse may choose to move on to another resolution process to complete negotiations.


In mediation, you and your spouse work with a family law mediator who helps you discuss and negotiate the issues arising from the separation. Many mediators use “interest-based negotiation”, which is the same proven settlement process that is used in the Collaborative Process. Some mediators use a more “rights-based” approach. Often in mediation (particularly in relation to parenting issues), you will work directly with the mediator without your lawyers present. If needed, the lawyers may be involved in the mediation sessions.

Regardless of whether lawyers are present at the mediation sessions, each spouse needs to have his or her own lawyer to receive independent legal advice before a mediated settlement is finalized. It is best to obtain independent legal advice early on in the mediation process, so that you will understand the legal issues and their implications while discussions are ongoing.

Mediation allows for the involvement of financial professionals and parenting professionals. If a negotiated settlement on all issues is not achieved, you and your spouse may choose to proceed to Arbitration for resolution of the remaining issues. Alternatively, either spouse may start a Court Application.

Some people choose to work with a mediator who will then become an arbitrator if a negotiated agreement cannot be reached. This means that the mediator can take on the role akin to a judge, hear evidence and submissions, and then make a decision that is binding on you and your spouse.

Collaborative Family Law (the process preferred by many of Barbara’s clients)

In the right circumstances, Collaborative Family Law or the Collaborative Process can be the most beneficial, custom fitting and transformative resolution process available to family law clients. It can also be the least expensive process available, both from an emotional and financial perspective.

In Collaborative Family Law, you and your spouse agree to work together with your lawyers (who have trained and certified to practice in the Collaborative Process), along with financial or parenting Collaborative Professionals (as needed), to generate options cooperatively to resolve your differences without going to court.

By entering into the Collaborative Process, you and your spouse take a significant step toward a positive new beginning for yourselves and for your families by choosing not to enter into a combative process. Instead, you’ll work together with your lawyers (and other collaborative professionals, as needed) to achieve each party’s goals in a respectful and creative way, and to find timely and comprehensive resolutions to the issues you face. No matter how complicated the circumstances may be, in the collaborative process each spouse will be given the legal, parenting and financial information needed to make the best decisions available to maintain strong post-separation family relationships and financial

Barbara believes strongly in the collaborative process, having witnessed the often transformative experience of her clients. She is an involved and active member of the Ontario Association of Collaborative Professionals Federation, the International Academy of Collaborative Professionals, and sat on the Board of Collaborative Practice Toronto, chairing one of their many active committees.

Steps Taken In the Collaborative Process:

  • Identify interests and goals (what is important to you, your spouse, and your children)
  • Gather financial, legal and other necessary information
  • Explain the settlement options under the legal model
  • Create various settlement options specific to the your circumstances
  • Evaluate and select the option that works best and prepare the Separation Agreement which will reflect and formalize the agreed-upon arrangements

In Collaborative Family Law, you, your spouse, and your lawyers will enter into a Participation Agreement, and then work through these steps together during in-person or Zoom meetings (together or in separate rooms) and sometimes between meetings through telephone calls or emails. The Participation Agreement formalizes your commitment to negotiate in good faith and the collaborative lawyers’ commitment to negotiate outside of court. The lawyers are obligated to withdraw if either spouse decides to go to court.

The Collaborative Process allows for the involvement, if needed, of financial professionals (financial planners, accountants and valuators) who streamline the gathering and analysis of financial documentation and add value to the negotiations.

The Collaborative Process also allows for the involvement, if needed, of family professionals (parenting mediators, neutral facilitators, coaches and child specialists) who provide information and assist in the negotiation of a parenting plan. They can identify what needs to be discussed in the process and provide support to ensure that children are protected from conflict and are assisted with the transition to their new family circumstances. Family professionals also facilitate collaborative meetings in order to maintain constructive communication and focus on the issues for resolution.

Court/Litigation or Arbitration

If you and your spouse cannot reach agreement on some or all of the issues through any of the settlement options available, it may be necessary to have a judge or arbitrator decide. Barbara no longer practices in the court system, or in Arbitration, so if any of the issues require a judge or arbitrator, she will provide a list of litigation lawyers that may be best suited to your case going forward and will assist in the transition of your case to your litigation lawyer.

The family court system in Ontario is designed to encourage early settlement. The first stage of a court proceeding is a Case Conference in which the court ensures that financial disclosure is completed, the legal issues are narrowed, and options for early resolution are canvassed. The Case Conference may be followed by motions to obtain temporary orders for the production of necessary information, and for interim parenting and financial arrangements.

If the case concerns a previously made Agreement or Court Order, it can be diverted to an experienced family law lawyer who acts as a “Dispute Resolution Officer” (a DRO) who assists in trying to settle the matter. If the matter is not settled, it will proceed to a Settlement Conference in which the judge assists the couple in an endeavour to settle their case. If agreement is reached, the terms of settlement can be documented in Minutes of Settlement or a Court Order. Most court cases settle without a trial. The scheduling of all of these steps at court is dependent upon availability in the Court schedule.

Arbitration is similar to court/litigation except that the person making the decision, the arbitrator, is chosen with the assistance by the couple having received recommendations from the lawyers, and then appointed by the couple. The arbitrator is usually an experienced family law lawyer. The ruling of an arbitrator is binding. Sometimes the couple appoint as their mediator a person who will ultimately arbitrate any issues that remain unresolved after mediation.

Barbara invites you to consult with her about your options for resolution

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