Mediation

If there are children of your relationship (natural or adopted) you have the same rights with respect to the children as a married person. Parenting rights (custody/access) and child support do not depend on a marriage. Spousal support is different. Spousal support in either an opposite or a same-sex union depends on whether you and your partner have lived together “(a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if [you and your partner] are the natural or adoptive parents of a child.” Rights to property division as described above, apply only to married spouses. Non-married spouses cannot claim an equalization payment. In certain circumstances, however, a non-married spouse has limited rights to property in the other partner’s name. These rights depend on showing that there was an agreement that the other partner would hold the property or part of it in trust for the partner claiming the right, or that the partner claiming the right had made direct or indirect contributions to the property in terms of money or money’s worth that “unjustly enriched” the other partner.

Where the child resides with one parent most of the time and spends the rest of the time with the other parent (a typical custody/access arrangement) the basic amount for child support to be paid by the other parent is determined by consulting a table published as part of the Child Support Guidelines. The number of children is matched with the income of the non-custodial parent (the income of the custodial parent is not counted).

An amount may be added to this basic amount for the non-custodial parent’s contribution to “special and extraordinary expenses” such as child care expenses, and expenses for extracurricular activities and post-secondary education.

Adjustments are made for shared parenting where the child is with each parent more than 40% of the time, and for cases of hardship where the standard of living in the payer parent's home would be less than the standard in the payee's home.

A feature of child support payments that differentiate them from spousal support payments is that they are tax-free in the hands of the recipient. (In spousal support where the payments are made on a periodic basis—e.g., once a week or once a month—pursuant to a written separation agreement or a court order—the payments are included in the income of the recipient for tax purposes and deducted form the income of the payor.)

Complete financial disclosure must be made by both parties. No settlement by agreement or court order can be made without full disclosure by each side of all relevant financial information. This involves the production of copies of income tax returns, and the completion by each party of a comprehensive form of financial statement showing income, living expenses, all assets of every description together with their value, and all liabilities. Documents verifying items in the financial statement may be required. Your lawyer cannot give you intelligent advice, and you cannot give your lawyer intelligent instructions on the resolution of financial issues such as support unless the information exchange is comprehensive and complete. Financial disclosure is the most important step in any negotiation. A failure to make complete disclosure may result in a settlement whether by agreement or court order being set aside.

There are five methods available to resolve these issues, and some of them can be used in combination with others. The five methods are:

Negotiation; Mediation; Collaborative Practice; Arbitration; and, Litigation.

Each of these five methods will be discussed in turn.

Negotiation: In traditional negotiations, the lawyers for the parties explore each other’s positions on the issues involved and attempt to reach a mutually acceptable solution that avoids a trial. The process generally involves identifying the issues, exchanging all information relevant to the issues, submitting positions on the issues and the reasons for taking those positions, and exchanging offers and counter-offers.

Mediation: This method involves the use of a third party to help the parties set the agenda for the discussion of the issues and to facilitate this discussion toward agreement. The parties, not the mediator, make the decisions on the issues and the final decision on whether or not they are resolved in a way acceptable for recording in a formal agreement. The mediator has no power to force the parties to agree, or to decided the issues if they cannot. The mediation may be conducted with or without lawyers for the parties being present during the sessions to assist with the mediation.

There are two types of mediation; open and closed. Open mediation is “withprejudice”. This means that if the mediation is unsuccessful, whatever is said in the sessions can be used in subsequent litigation or other proceedings. Sometimes at the request of the parties, the mediator will prepare a report containing an assessment of the issues presented in the mediation and the recommendations of the mediator. The benefit of open mediation is that the work done is not lost if the parties fail to settle. The disadvantage is that the parties, knowing what they say may be used against them in some other proceeding, become more guarded in the information exchanged and more polarized in their claims.

Closed Mediation means that whatever is said is “without prejudice”. All communication in the mediation and any position taken is confidential and cannot be raised again in any other context. The advantage is that the clients are more open in the exchange of information, are less positional and negotiate more freely. What may be seen as a disadvantage is that if they do not settle their differences, no report can be obtained from the mediator for use in court either by way of a written report or by calling the mediator to give evidence as a witness. If the mediation is successful, the mediator will prepare a summary of the issues and their resolution which the parties then take to their lawyers for independent legal advice and the preparation of an agreement.

Collaborative Practice: In a sense, collaborative practice is mediation without a mediator. Each party is represented by a lawyer specially trained in the process and the parties and the lawyers enter into a commitment not to litigate. Instead of a confrontation in a “me against you” approach the lawyers and the clients work together to attack the problem and not each other. It’s a problem-solving exercise, not a fight, with the lawyers each protecting the interests of his or her client while advancing toward a “win-win” outcome.

During the process, the clients retain control over the agenda and the outcome with the lawyers providing legal protection, negotiation coaching, and conflict mediation. Modern methods of dispute resolution are used in place of traditional positional bargaining.

The process builds on the parties’ willingness to settle and appeals to the individual’s higher self -- looking to the future and refusing to become embroiled in the faults of the past. Depending on the needs of the parties and their family, other professionals with training in the collaborative process may be involved. These include financial planners with a background in accounting, or family professionals acting as child specialists or divorce coaches, who come from the fields of social work psychology.

Arbitration: This method involves appointing a third party to decide certain issues in much the same way that a judge would. The arbitration process can range from a full hearing similar to a trial with the arbitrator making an award (like a judgment) at the end of the hearing, down to a process resembling mediation with the distinction that the arbitrator acting as a mediator is empowered to decide certain issues, if the parties do not agree (mediation/arbitration).

The advantage is that the clients can select the individual they want as an arbitrator (as opposed to the court system where a judge is assigned without consultation with the parties). And generally, arbitration is more expedient than the court process and less expensive. The disadvantage of arbitration is that the decision-making powers are taken away from the parties and given to a third person.

Litigation: Litigation is the court process that ends in a trial, if the matter is not settled along the way. The parties have much less control over the process than they do in the other methods of dispute resolution. Unless agreement is reached, decisions are made by a judge based on the evidence presented. Resort to this method may be necessary where there is no trust between the parties and co-operation is not possible; or the parties are entrenched in extreme positions and unwilling to compromise; or there is a pathological relationship.

Sometimes, even in less dramatic situations, it is necessary to take steps in a legal proceeding for temporary orders to obtain, say, a stable arrangement for the parenting of children or financial support, or simply to bring the other party to the negotiating table. Whatever the reason for starting a legal proceeding, the chances of it going all the way to trial are remote. With the encouragement of the court, at some stage the parties and their lawyers usually find enough common ground to resolve the matter on mutually acceptable terms without further court involvement.