Family Court can be expensive and take a long time to wrap up. However, going to court and having a hearing / trial is not the only way to resolve family issues. Much of what is the subject of family cases is not actually legal in nature. It is about supports, changing relationships, parenting and financial decisions. While courts are often asked to help families deal with these matters, you should feel empowered to make your own decisions about these matters, just as you always have. When you can’t agree with your spouse / partner over non-legal issues, there are resources that can assist you – see Section 17 Resources.
That leaves legal issues to be resolved. Often those legal claims can also be settled without a hearing / trial, and even without starting a legal case. Here are a couple of methods you can try to settle your legal issues.
- 4.1 Negotiations
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Negotiation is a discussion between at least two people with the goal of reaching an agreement. It is an everyday activity whether it is negotiating a work contract or debating with friends about where to go for dinner. Negotiating a family dispute allows you to have a lot of control over the process. You can come up with a mutually agreed upon solution. The remedies you can get through court can be limited to those allowed under the law. Negotiating your own settlement can allow for more creative solutions. For example, you may aspire to have the kids on weekdays and every other weekend and during holidays, you would be content with weekdays and shared holidays and could live with shared 50 / 50 parenting time 2 weeks on 2 weeks off. You can still negotiate and try to settle your case even after the family case has started. It often takes many months between starting a case and getting to a hearing / trial. During this time try to settle some or all of the issue in the dispute to save you the time and money of going through a hearing or trial.
How to negotiate
For negotiating a family dispute, the collaborative style of negotiation can lead to the best outcomes. It focuses on a win-win outcome and allows for creative solutions.
The classic example that illustrates this method is the orange example. Imagine Paul and Suzy, they both want an orange, but they only have one between them. The compromising method would split the orange in half, so each would receive an equal share. The collaborative method would dig a bit deeper to find out what their underlying interests. Paul really only wants the orange peel for his baking and Suzy just wants to eat the orange flesh. So, a collaborative solution would be to give the orange peel to Paul and the flesh to Suzy this way they are both satisfied, and you have a win-win.
Of course, not all situations in life are so simple. But the method of working towards an arrangement that meets both parties needs (a win-win) is a productive way to negotiate and allows you to come to more satisfying and creative agreements.
Three keys to collaborative negotiations
- Understand your goals (ACL)
The first step is for you to figure out what you want and what range of possible solutions might be acceptable to you. Classify your negotiations goals according to this formula:
Aspire to – What do you hope for? What is the best possible outcome?
Content with – Where is the middle ground? What would you say is not good, but not bad?
Live with – What is the minimum acceptable solution? Where’s your bottom line?
This classification is known as your ACL. It reflects your best-case scenario, middle ground and your worst-case scenario. For example, you may aspire to have the kids weekdays and every other weekend and during holidays, you would be content with weekdays and shared holidays and could live with shared 50 / 50 parenting time 2 weeks on 2 weeks off.
Knowing your goals before you start negotiating helps you avoid bad agreements and to know your limits. It helps you create good agreements that will last longer and work better for you both.
- Understand positions and interests
There are two ways to negotiate: position-based or interest-based. Position negotiating tends to be rigid and adversarial. For example, this is my position, take it or leave it. The problem with positional negotiations is that you get too rooted into your position and lose sight of what is important to you.
Interest-based negotiations tend to be much more creative and flexible. Interests are what your positions are based on. They are what drive you to want what you want. These negotiations are more likely to result in optimal solutions.
Consider the example:
Position: I want the kids for New Year’s Day so they can visit their grandparents during the traditional celebration.
Interest: I want the kids to have a good relationship with their grandparents and to appreciate their cultural traditions.
The only way to meet the position is to have the kids on New Years. But, if the parents focus on the interests, a much richer solution may allow the kids to have a better relationship with the grandparents and experience more cultural traditions.
Interest-based negotiation allows people to gain a better understanding of what is important. This helps them to create agreements that reflect those interests. These agreements often last longer and are followed because they meet the deeper needs of the parties.
Tips for interest-based negotiations
- Figure out, what is important to you about this and why? And put yourself in the other person’s shoes and imagine what is important to them.
- Keep an open mind about what the final agreement may look like. Think of a range of possible outcomes.
- You need the cooperation of the other person to make this work and they need your cooperation – there may be trade-offs to meet the most interests of both parties.
- Collaborative Language
When you are collaborating, you will want to use the language of collaboration to keep you on track and avoid misunderstandings.
The following questions / phrases are examples of collaborative style language that helps promote good communication.
- What if we…?
- What is important to you about…?
- Let us look at how we both might…?
- How do you feel about …?
- I would like to focus on..?
- Could you tell me more about…?
- I will consider that and get back to you.
- Let me see if I understand you...
- Would this be acceptable…?
- How would it work if…?
- How do you see it?
- Does it seem fair / make sense…?
How to Speak Collaboratively Chart
The table below provides key skills and examples for a collaborative communication.
Skills
Definition
Examples
Qualifying
Statements that explain the nature of the conflict.
The only part that poses a problem for me is the Friday schedule.
Accepting Responsibility
Statements where responsibility is taken by you or both of you. Use “I” or “we”, never “you”.
I was too quick in thinking it was not worth the effort.
Describing
Observational statements that have no judgement passed.
I noticed the shed needed repairing after that storm.
Disclosing
Observational statements about things the other person could not have witnessed, such as feelings, intentions and motivations.
I was upset about what happened and I felt unheard.
Getting Feedback
Getting information about the other person’s perspective.
What impact did that have on you?
Empathy
Statements that convey your understanding or acceptance of the other party.
I understand you felt anxious when the plans got changed.
Commonalities
Statements about shared needs or goals.
We both agree that our child’s best interest is our priority.
Initiating Problem Solving
Statements that start the search for a solution.
I believe we can work towards a solution that will get us to win-win.
For more tips on collaborative language review the chart below. Before you negotiate be sure to fill out the Negotiation Worksheet.
- 4.2 Negotiation Worksheet
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For every issue to be negotiated, complete this worksheet. Fill in your ACL goals and the goals of the other party. Write down the underlying interest behind the goals. Determine if you have shared goals. Start thinking creatively about what alternative options would help you both reach agreement.
Aspire to: What do you hope for? What is the best possible outcome?
Content with: Where is the middle ground? What would you say is not good, but not bad?
Live with: What is the minimum acceptable solution? Where is your bottom line?
Issue: ______________________________________________________________________
A: ________________________________ A: ________________________________
________________________________ ________________________________
C: ________________________________ C: ________________________________
________________________________ ________________________________
L: ________________________________ L: ________________________________
________________________________ ________________________________
Underlying Interests:
________________________________ ________________________________
________________________________ ________________________________
________________________________ ________________________________
Shared Interests:
____________________________________________________________________________
Alternative Options:
____________________________________________________________________________
Issue: ______________________________________________________________________
A: ________________________________ A: ________________________________
________________________________ ________________________________
C: ________________________________ C: ________________________________
________________________________ ________________________________
L: ________________________________ L: ________________________________
________________________________ ________________________________
Underlying Interests:
________________________________ ________________________________
________________________________ ________________________________
________________________________ ________________________________
Shared Interests:
____________________________________________________________________________
Alternative Options:
____________________________________________________________________________
- 4.3 Who Can Help You Resolve Your Case
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There are many professionals that can assist with resolve your case outside of court. It is often more cost effective, less stressful and time efficient to settle. Here are examples of a few types of professionals that are often used in family disputes. There are many others such as counsellors, financial advisors and parenting coordinators. To learn more about professionals in your region, see Section 17 Resources.
Mediation
In mediation, the parties in a family dispute meet with a mediator whose job is to help them talk to each other and see where compromise may be possible. The mediator does not make decisions for you. Their job is to help you make those decisions for yourselves. Therefore, mediation may allow you to have more control over the decision-making process.
Mediation may be used at any time. Mediation may be used before someone has gone to court. Sometimes there is no need to go to court if mediation is used and the parties come to an agreement. Sometimes people use mediation soon after a claim has been filed in court. Others use mediation when they get very close to a hearing / trial.
Key characteristics of mediation:
- Voluntary: Mediation is usually a voluntary process so both parties must be willing to engage in mediation.
- Confidential: Mediation is confidential, which means that generally speaking, what is said in mediation stays in mediation. The discussions that take place in mediation is “without prejudice” and cannot be used in the legal proceedings, without agreement. However, any agreement resulting from mediation may be filed in court and enforced legal.
- Impartial and neutral mediator: The mediator is not there to pick sides. They are unbiased and are usually chosen by agreement of the parties.
Collaborative family practitioners
You can hire a collaborative professional to help you resolve your case through collaborative negotiations. This is a kind of negotiation in which everyone agrees not to go to court. Experts like accountants and valuators, and in family law claims, psychologists and counsellors, can be brought into the negotiation process to help with social, relationship, parenting and financial problems.
The collaborative family practitioners involved have special training. They are committed to settling family issues outside of court.
Arbitration
You might also think about arbitration (where is allowed in family cases – in some provinces, e.g. Quebec, it is not). Arbitration is a lot like court, because it is adversarial in nature. Rather than a judge, you are hiring someone, the arbitrator (often an expert in the area of dispute family law), to decide for you after evidence and submissions. However, the arbitration process can be a lot simpler and a lot faster than court, and arbitration is held in private.
Others
There are other services that can help you settle your disputes, such as counselors or online dispute resolution platforms. Check Section 17 Resources to see what services are available in your area.
- 4.4 Separation Agreement
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A separation agreement is a written document between you and your former spouse / partner setting out what you have agreed on the key issues. It is basically a contract that sets out how you two are to live after separation. Separation agreements are made once the relationship has ended. You must both agree to it of your own free will. It is binding upon the both of you and can be incorporated into court orders if you do go to court. Both common-law and married couples can make separation agreements.
If you have been able to settle some or all of the issues, it is important to get that agreement on paper. A separation agreement must be in writing for it to be registered and enforced. Using a lawyer(s) to draft such an agreement is often beneficial to both parties as more likely to make sure that all matters are considered and none left out – the balance of this section is if you do it yourself.
Format
Separation agreements start with the date and the full names of the parties to the agreement. Recitals follow, which describe the background or details leading to the agreement (such as date of marriage, separation, children’s names and birth dates, legal steps taken, if any). Next, the terms of the arrangement form the main body of the agreement. Finally, the document ends with the execution (signing and dating of the agreement by both parties and witness).
Writing tips
- Use “will” or “must” instead of “shall”.
- Group issues: The main body of the agreement should be grouped according to subject area: children, child and spousal support, and property.
- Use short, simple, descriptive sentences.
Reaching Settlement Tips
Stay future focused: It will be tempting to bring up the past; however, if it is not going to help you reach an agreement, avoid bringing it up.
You will not get it all: You will probably not get everything you want. You will need to compromise. Stay realistic and find an agreement that will work for you.
Listen: Really listen to what your former spouse / partner is saying. Let them finish speaking before you start talking. A good tip is to paraphrase what they just said, this shows that you are listening and helps prevent misunderstandings. To paraphrase use phrases like “If I understand you correctly you want...” or “I am hearing that you find it important that...”.
Think it over: Give yourself time to consider all the implications of a potential agreement, both immediate and longer-term. Give the other side the same.
Have clear objectives: Figuring out what you want before you go into negotiations is key. Knowing what is important to you will help you avoid being caught off guard. Think about what the other side might want.
Benefits of separation agreements
- You have control over the key issues.
- Typically done quicker than going to court.
- Can be a lot less expensive than court.
- It is enforceable by the court.
- It is easier to change than a court order. A court order requires a judge to change it, while an agreement only needs the two of you to agree, in writing.
- Allows you to agree to a division of property and debt that is different (perhaps with “trade-offs”) from the way the court might divide the property under the law.
- Can be a more amicable and less stressful process than court.
If you are able to come to an agreement that is wonderful, but be careful because there are a few more things to do to finalize the agreement. It is important to take the time to carefully consider your agreement so you can avoid future disputes.
Steps to finalize your agreement
Evaluate your draft agreement. Ask yourself:
- Is this agreement fair?
- Is it in my children’s best interests?
- Can I afford this agreement – now and in the foreseeable future?
- Is there a clearly stated method to collect or enforce commitments?
- What did I want that I did not get? Can I live without it? Is it worth additional time and money to re-negotiate?
- Am I rejecting this agreement because I am mad at my spouse / partner and want to make him or her suffer?
- Will I be better or worse off if I go to court? Get advice on how a judge is likely to rule.
- Is the financial and emotional toll of not settling too high for me and my children to pay?
Get legal advice
- It is a good idea to see a lawyer before you sign the agreement, to make sure that you have protected your rights, have independent objective advice, and to ensure the ability to enforce its terms. A lawyer can go through the agreement and explain any defects or risks. You should see a different lawyer from the one your former spouse / partner sees, to get independent legal advice.
Sign and witness
- After you have seen a lawyer you will want to sign the agreement. The agreement is binding once it is signed by both parties. If the agreement is about property or spousal support, the signature should be witnessed by at least one other person who is an adult. The same person can witness both signatures.
File it
- Once you have an agreement in place, it is best to formalize it so that it can be enforced by the courts. You may need to file it with the court to formalize your agreement, depending of the laws and rules in your province or territory. Once it is registered, the court will generally treat your agreement as if it were a court order as long as it is within the court’s jurisdiction.
To prepare, fill out the Separation Agreement Preparation Checklist.
- 4.5 Separation Agreement Preparation Checklist
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Fill out the questionnaire to the best of your abilities before sitting down to negotiate with your former spouse / partner. When answering, consider the other party’s position and what would realistically work for your situation. Use this worksheet while negotiating an agreement.
- Basic Information
- Date of marriage or cohabitation?
- Date of separation?
- Children? (names and dates of birth)
- Issues to be discussed?
- Children
- Who has day to day care, control and supervision of children?
- Where will the children live?
- Who will make decisions about the child’s...?
- education
- extracurricular activities
- cultural, linguistic, religious upbringing
- health care
- application for passport, permits, etc.
- What will the scheduled time with parents look like? (try to be specific with dates and times)
- Where will the children spend holidays and school breaks?
- How and when are children to be picked up and dropped off?
- Who will pay what amount for child support? (use the Child Support Guidelines)
- How will extraordinary expenses be paid?
- When will payments occur? (e.g. first of each month)
- When will the payments start? (give a date)
- How will the payments be made? (e.g. cheque, direct deposit)
- How will medical expenses be covered? (e.g. under benefits)
- Any outstanding child support payments still owing?
- Agree to share financial information? (e.g. annually exchange tax returns, assessments)
- Other issues regarding children that should be discussed?
- Spousal Support
- Who pays what amount?
- When will the first payment be made?
- When will payments occur? (e.g. first of each month)
- How will the payments be made? (e.g. cheque, direct deposit)
- When will the last payment be made?
- Will you meet to review and revise support payments?
- How often?
- Other issues regarding spousal support that should be discussed?
- Property and Debt Division
- Details about family home?
- How will the family home be dealt with? (e.g. put up for sale, stays with one of the parties)
- Who will pay for home upkeep expenses?
- List all other family property. How are they each to be divided?
- Other issues regarding property division that should be discussed?
- Details about family debt?
- Who will be responsible for which debt?
- Other issues regarding debt division that should be discussed?
- Other
Any other issues to discuss: __________________________________________________________