Surviving Family Conflict
The Divorce Process: How Are Matters Resolved?
How are family matters resolved? Family matters are resolved in two ways – (1) by agreement between you and your spouse preferably with professional assistance, or failing which, (2) by a third party. In other words, you and your spouse negotiate a resolution with professional help or, a third party, such as a judge or an arbitrator, who will decide for you and dictate the terms of any resolution.
1. By Agreement
More often then not, the resolution of the issues arising from the breakdown of a relationship is contained in a domestic contract. Typically, you will negotiate the terms of such an agreement through counsel, with or without the assistance of a neutral third party mediator. Often, one spouse hires a lawyer and instructs the lawyer to send a letter to his/her spouse. The letter typically asks the spouse to hire a lawyer to negotiate the issues and, with the assistance of his/her lawyer, prepare a Financial Statement.
Financial Statements are then exchanged and the parties, through counsel, attempt to resolve the issues either through further correspondence and/or a four-way meeting. Sometimes parties agree to involve a neutral third party mediator to assist as well. Once resolved, the agreement is reduced to writing in the form of a domestic contract, known as a Separation Agreement.
Another process option is known as collaborative family law or collaborative divorce. In this process, parties hire specially trained family law lawyers and sometimes other family professionals, such as financial specialists and parenting specialists, and the parties and professionals work as a team to help the parties reach a resolution and reduce it to writing in a Separation Agreement.
2. By Litigation / Arbitration
If you and your spouse reach an impasse and cannot agree or when something is urgent (i.e. a child has been taken without consent), a lawsuit is usually commenced. As well, a lawsuit is sometimes commenced on the belief that the threat of going to court will result in an immediate settlement.
A lawsuit is commenced by the issuance of an Application. In an Application one spouse states what he or she wants and on what basis. The lawsuit is “defended” by the delivery an Answer.
A lawsuit can be commenced in one of two Courts in Ontario: the “Ontario Superior Court of Justice” or the “Ontario Court of Justice.” If property is in issue or if you or your spouse seeks exclusive possession of the matrimonial home, among other things, a lawsuit must take place in the Ontario Superior Court of Justice. Alternatively, if property is not in issue, a lawsuit may take place in the Ontario Court of Justice.
Don’t be surprised if the claims of your spouse seem totally unreasonable. Claims are often inflated on the theory that “the more you ask for, the more you get.”
You will usually be required to obtain a Case Conference before any other steps are taken in a lawsuit. A Case Conference is a meeting between lawyers and a Judge to narrow the issues and explore settlement, among other things.
If claims are made for support, exclusive possession of a matrimonial home, or custody of children, and a Case Conference did not resolve the issue, a “Motion” will usually be brought shortly after the Case Conference. In other words, you or your spouse goes to Court and asks for something on a temporary basis, until the case is settled or otherwise decided by a Judge at a trial.
Note that if a motion is brought, significant time and effort is required to prepare the appropriate materials, including a Notice of Motion, Affidavits in support thereof, a Financial Statement, a Statement of Prior Legal Proceedings and a Confirmation Form. As well, you may be questioned on any Affidavits or Financial Statements filed in support of the motion.
Following the filing of an Application and Answer and a Case Conference, documents may be exchanged if there is no settlement.
If your matter does not settle by this stage, questioning may take place. Questioning is an informal hearing where one or both parties get an opportunity to discover the facts relied upon in support of the respective claims. A representative from our firm, the opposing counsel and you or your spouse will meet in an office.
If you are questioned, your spouse’s lawyer will ask you questions and you will give answers recorded by a reporter. A representative of our firm will be there to ensure that the questions you are asked are proper questions. The questions and answers may be used at trial or to settle the case.If there is still no settlement, a case is set down for trial. A “pre-trial” conference may take place and then ultimately a trial may occur. Note that it may take a few years for a case to reach the trial stage because the courts have hundreds of cases pending.
Another adversarial process becoming more and more popular, for reasons of expediency and privacy, is arbitration. This is a process where a third party, privately retained family law expert, acts a the decision-maker in lieu of a Judge in the litigation process. As well, a hybrid process involving the possibility of an arbitration is becoming more and more popular in the Toronto Region, which is called mediation / arbitration. This is a process where the same family law expert acts as a mediator and if a resolution is not reached in the mediation phase, the same family law expert acts a privately retained Judge and renders an Award which can be enforced in the Court system.
A Divorce in the Process
A divorce is simply that – a divorce. It means that you are free to marry another individual. It typically does not have anything to do with the other issues, such as support, custody or a division of property, and it is most often processed through the Court system on a “paper record” once a resolution is documented in the form of a Separation Agreement. In situations where an impasse is reached or an emergency exists and litigation is commenced, parties will often claim a divorce along with the other issues and the divorce is most often again processed when all of the other issues are resolved, on a consensual basis.