What is Collaborative Family Law in Ontario?

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If you’ve separated from your spouse, or you’re thinking about separating, you might want to consider using a collaborative family lawyer.

Collaborative family law refers to an out of court process that addresses the emotional, financial and legal issues that arise as you transition through the end of a relationship.

During the process, you might also need to work with other collaborative professionals, such as a financial professional or family professional. These professionals are neutral, and they do not take sides.

For example, a financial planner may help you understand what taxes you will pay if certain types of property are transferred to you from your spouse. A child specialist, such as a social worker, might help you reach a parenting plan that meets your child’s wishes, their extracurricular activities, and you and your partner’s schedules.

You and your partner will both be responsible for paying for these various professionals.

Your collaborative professionals work together with you and your partner to help you agree on your issues. They offer a safe space to help you reduce conflict. Usually, you’ll have several meetings with your collaborative professionals before you agree on your issues.

During these meetings, you are encouraged to share your thoughts and ideas. Many people might expect that their lawyer will speak entirely on their behalf; however, collaborative family law encourages more direct involvement from you.

A voluntary process

It’s important to keep in mind that collaborative family law is voluntary. This means that you cannot be forced to use it, or forced to agree on your issues. However, if you and your partner decide to choose the collaborative family process instead of going to Court, then you’ll have to mutually agree in writing to commit to the process. This written agreement is called a Participation Agreement.

​Collaborative family lawyers have special training in:

  • ​using a cooperative way to get partners to agree
  • ​focusing on solutions that consider both partners’ interests and needs, while taking into account legal rights
  • ​supporting partners to speak openly and honestly with each other
  • ​and making sure that partners have all the financial documents and information they need to make informed decisions

​Collaborative family lawyers also agree in writing not to go to court. As a result, they are committed to helping you reach a settlement.

​If you and your partner agree on how to resolve your issues, your collaborative lawyers will draft a legal document called a Separation Agreement.

Reasons why people choose collaborative family law

There are many reasons why people choose the collaborative process. And there are also reasons why they don’t.

Some of the reasons why many people might prefer to use a collaborative family law include the following:

  • It can be faster than going to court. In other words, your team of professional can begin working towards your goals almost immediately, instead of waiting for a court date.
  • It can also be more cost effective than going to court. Court cases often make bad situations even worse, and they don’t bring out the best behavior in many people. On the other hand, collaborative family meetings are often more respectful and are more likely to achieve a mutually acceptable arrangement.
  • You also have a lot of control over the timing, process, and results. If you go to court or choose arbitration, a judge or arbitrator decides how your issues will be resolved, and you don’t control the process.
  • And, finally, you will learn how to cooperate. This cooperation can be helpful if you have children, and you and your partner need to discuss things in the future like which school your children should go to.

Some people choose collaborative family law because they feel that they can negotiate better when they’ve agreed that they will try not to go to Court.

When collaborative family law is not suitable

There are many reasons why collaborative family law may not be right for you, such as the following:

  • Although it can be faster than going to court, you still have to agree with your partner to use the collaborative process, and it may be difficult for you and your partner to come to that agreement.
  • Collaborative family law also isn’t suitable when you have an emergency and need a court order quickly. For example, if there is a risk that your partner is going to leave the country with your children.
  • Also, collaborative family law may not be appropriate if you feel that you won’t be able to negotiate fairly or safely with your partner even with specially trained lawyers involved. For example, if there is a history of domestic violence or if you know your partner will hide financial information.

What if we don't end up agreeing on things after trying collaborative family law?

Most of the time, partners who want to make the process work are able to reach an agreement.

​However, if you can’t agree on all your issues and you need a decision, then you can try arbitration, or going to court. Then an arbitrator or a judge will decide what happens.

​If you ultimately decide to go to Court because the collaborative process doesn’t work for you, then it’s important to keep in mind that you cannot use the same lawyer for both your court proceeding and your collaborative process. You would have to find a new family lawyer to go to Court.

What does the overall process look like?

We mentioned earlier that a document called a Participation Agreement near the very beginning of the collaborative process is required.

Your collaborative family law lawyer usually creates this agreement for you.

The agreement will include details about you, your partner, and your issues. It also requires everyone to promise to do certain things, such as the following:

  • that you will negotiate respectfully and cooperatively
  • that you will share financial information and other documents
  • how you will end the process if you haven’t resolved your issues
  • and that you agree not to go to court with your collaborative family lawyer

Before signing the agreement, you should read it carefully, make sure that it includes all the important details about the process, and ask your lawyer any questions that you might have.

During the process, it’s important to work closely with your lawyer.

Your collaborative family lawyer works with you to set up a process for negotiation that makes sense for your family. You may discuss things in person or over the telephone, and exchange documents in person, or by email.

Usually the lawyers exchange documents between each other, and they might have initial phone discussions before all of you meet. You can expect to have several meetings together.

Your lawyer will also discuss your Separation Agreement with you before it’s finalized. This way, you have time to think about the agreement and talk with your lawyer privately about it. There may be several draft versions of the agreement before you and your partner make a final version of your separation agreement.

If you need to resolve property or support payment issues, it is very important that you share complete and honest information about your income, assets, and debts. This is called Financial Disclosure.

You can share this information in many ways. For example, you could use a spreadsheet that lists your financial information. You can also official court forms. Many people use these court forms even if they don’t actually go to court. The forms can be useful because they show you what a court might consider when deciding support and property issues. They also help you see what type of information you and your partner need to give each other.

Your collaborative family lawyer, your partner’s collaborative family lawyer, and sometimes a financial specialist can help you figure out what information needs to be shared to reach an agreement.

You can put what you and your partner agree on into a separation agreement. This is a written contract that you make with your partner.

A lawyer can help you and your partner reach an agreement that is legal, enforceable and binding. A binding agreement means that if either of you stops following the agreement, then the court can order you or your partner to do what the agreement says.

After you and your partner have signed your separation agreement, it will not be easy to convince a Judge to ignore that contract. In most cases, a Judge will require you to continue following the agreement.

For example, the court will not set aside an agreement just because one of you has changed your mind and now thinks your agreement is not fair. But the court may allow you to set aside some or all of the agreement if it wasn’t negotiated fairly because one of you didn’t share your financial information honestly.

If your situation has changed, such as your children’s needs or circumstances, then you can ask the court to change an agreement that deals with some issues like child support, custody, access, or parenting arrangements.