Can We Mediate a Separation Agreement in Ontario?

Separation can be a challenging and emotional process, but mediation offers a constructive and collaborative way to resolve disputes. If you are separating in Ontario, you may be wondering whether you can mediate a separation agreement and how this process works. In this blog post, we'll explore the role of mediation in creating a separation agreement and the difference between a legally binding separation agreement and a mediation report resulting from the mediation process.

What is a Separation Agreement?

A separation agreement is a legally binding document that outlines the terms and conditions of a couple's separation. It is a comprehensive contract that addresses various aspects of the separation, ensuring that both parties' rights and responsibilities are clearly defined. Depending on the circumstances, a separation agreement will cover the following issues:

• Property Division: How the couple's assets and debts will be equalized. This can include the family home, bank accounts, investments, personal property, and any other assets or liabilities.

• Spousal Support: Whether one party will provide financial support to the other, including the amount and duration of such support.

• Child Support: Arrangements for the financial support of any children, including how expenses will be shared and the amount of monthly support payments and the payment of future post-secondary expenses.

• Parenting Arrangements: Including where the children will live, the schedule for parenting time, and how decisions about the children will be made.

• Other Provisions: Any other terms that the couple agrees upon, such as health insurance, education expenses, and how future disputes will be resolved.

• Releases: Terms affirming the couple agreement to release each other from further legal claims that could arise resulting from their marriage or cohabitation provided the terms of the contract are abided by, including possible claims for future support or to share in the estate of the other upon death.

A separation agreement serves as a blueprint for the couple's future interactions and responsibilities. It provides clarity and structure, helping both parties move forward with their lives while ensuring their legal rights are protected. Importantly, a separation agreement is generally enforceable in court, meaning that if one party does not comply with its terms, the other party can seek legal enforcement of the terms of the agreement.

Mediating a Separation Agreement

Mediation is a voluntary process where a neutral third-party mediator helps separating or divorcing couples reach mutually acceptable agreements on various issues. The mediator facilitates discussions, encourages open communication, and assists the parties in finding common ground. Mediation focuses on collaboration, allowing couples to maintain control over the decisions affecting their lives rather than leaving them to be decided by a judge.

You can learn more about the mediation process and its benefits in our posts on How Does Mediation Work for Separation and Divorce in Ontario and What Are the Benefits of Using Mediation When You Separate and Divorce in Ontario?

The Role of Mediators vs. Independent Lawyers

Mediators

The mediator's role is to facilitate dialogue, clarify issues, and assist in exploring resolution options. Mediators, even if they are lawyers, do not provide legal advice to participants. However, a mediator with a family law background can be valuable to separating spouses by helping them identify key issues to address in a separation agreement.

Mediation allows separating spouses to reach a comprehensive agreement on issues such as the equalization of family property, parenting arrangements, spousal support, child support, and dispute resolution methods which can then be incorporated into a legally binding separation agreement. Mediation is advantageous as it provides a cost-effective, time-efficient, and collaborative environment to discuss these matters and reach resolutions, avoiding prolonged negotiations between lawyers or adversarial court proceeding

The outcome of mediation is typically documented in a Mediation Report or Memorandum of Understanding (MOU). This document outlines the terms agreed upon by the parties during mediation, often in detail. However, it is important to note that a Mediation Report is not a legally binding contract. To become legally binding, the terms of agreed upon during a family mediation process must be incorporated into formal Separation Agreement.

Independent Lawyers

Although it is not mandatory under the law, once a resolution is reached in mediation, it is strongly recommended that each party to seek independent legal advice from their own lawyer to understand their legal rights and obligations.

Lawyers play a vital role by providing legal advice and reviewing the terms agreed upon during mediation to ensure they meet their client's needs and comply with Ontario law.

It is also the role of a lawyer to incorporate the terms of settlement outlined in a Mediation Report into a legally binding Separation Agreement. A formal Separation Agreement will incorporate essential legal language and provisions necessary for enforceability under the law. Once both parties and their respective independent lawyers approve a Separation Agreement, it is signed by both parties, thereby becoming a legally binding and enforceable contract.

In Ontario, family law lawyers commonly sign Certificates of Independent Legal Advice in connection with Separation Agreements. These certificates, signed by the lawyers and attached to a Separation Agreement, confirm that the parties to a Separation Agreement have reviewed the agreement with their lawyers, understand the terms of the agreement, and have advised their lawyer they are signing the agreement voluntarily and without duress. Certificates of Independent Legal Advice can play a crucial role in the enforceability of separation agreements. Without a signed Certificate of Independent Legal Advice, there is potential increased risk that a separation agreement could be set aside by the court in the future.

You can learn more about the distinctions between the role of a mediator and the role of lawyers in the mediation process in our post, Will We Need Lawyers if We Mediate Our Separation and Divorce in Ontario.

Conclusion:

In Ontario, you can mediate a Separation Agreement with the help of an experienced family mediator. Mediators assist couples in arriving at an agreement on all the issues to be included in a Separation Agreement, which are then documented in a Mediation Report prepared by the mediator. A Mediation Report, however detailed, is not a legally binding contract. It is recommended that mediation participants retain independent lawyers to provide them with independent legal advice and to incorporate the terms of settlement detailed in a Mediation Report into a formal Separation Agreement, ensuring it is legally binding and enforceable contract.

Why Chose Teal Family Mediation to Mediate Your Separation Agreement?

As professional mediators with legal training and experience in family law, the mediators at Teal Family Mediation can assist you in identifying and resolving the issues to be addressed in a comprehensive Separation Agreement. Our detailed Mediation Reports are aimed at minimizing the legal costs typically incurred for lawyers prepare a Separation Agreement at the end of the process.

We also assist mediation participants with exchanging relevant financial disclosure which is an important step in arriving at an enforceable Separation Agreement in Ontario.

Our goal is to provide separating spouses in with a cost-effective, efficient, and compassionate alternative to traditional lawyer negotiations or adversarial court proceedings to reach a resolution.

We offer complimentary Discovery Calls to help you decide if our approach and our team are right for you.

Disclaimer: This blog is for informational and educational purposes only, and none of the information in this blog post should be construed as legal advice. Should you have questions about your legal rights and obligations, or about your legal process options when you separate, you should consult with an independent lawyer to receive legal advice.

We can work it out. Together.

Teal Family Mediation is team of professional divorce mediators located in Hamilton, Ontario offering mediation services for separating married and common-law couples and co-parents. We provide an alternative to high-cost, inefficient and adversarial court proceedings with an affordable, modern and compassionate approach towards resolution.

We offer services in-person at our offices located in the Ancaster, Meadowlands and virtually from anywhere in Ontario.

 

If you are interested in learning more about how we can help you, let’s connect.

Will We Need Lawyers if We Mediate Our Separation and Divorce in Ontario?

This is one of these most frequent questions we are asked by participants entering into the mediation process.

The answer is yes, you will need to have your own independent lawyers to assist you as part of the mediation process.

Let’s dive into why.

Understanding the Hesitation

The concept of hiring individual lawyers may seem counterintiutive for couples who are seeking to resolve the issues arising from their separation amicably through mediation. And we understand why.

There may be concerns about escalating conflict, increasing costs, or prolonging the resolution process. Some individuals may perceive hiring a lawyer as an indication of distrust or a lack of commitment to the mediation process. After all, the purpose of mediation is to resolve disputes amicably, without the need for adversarial legal battles, right?

But it is important that you understand the distinction between a mediator and a lawyer, and the role that independent lawyers play in the mediation process.

Your Mediator is Not Your Lawyer

Mediators cannot provide legal advice. This is true even if the mediator is an experienced family law lawyer.

Many separating couples share the common goal of amicably arriving at a resolution of the issues arising from their separation. However, when spouses separate there exist divergent legal rights and obligations that often conflict. The Law Society of Ontario has strict rules prohibiting a single lawyer from acting for two parties with different legal rights and obligations. Furthermore, a mediator’s duty is to remain neutral and impartial. Providing legal advice to both spouses could introduce the potential for a conflict of interest which could undermine a mediator’s ability to uphold neutrality and compromise the mediation process.

Therefore, a mediator cannot provide legal advice and it is important that each party consult with their own independent lawyer to receive legal advice regarding their individual rights, interests and obligations as part of the mediation process.

Lawyer-Assisted Mediation vs. Mediation without Lawyers

Before we delve into the role of lawyers in the mediation process, it is important to understand the difference between the two primary types of family mediation in Ontario: lawyer-assisted mediation and mediation without lawyers.

Lawyer-Assisted Mediation: In lawyer-assisted mediation, both parties have their own lawyers present during the mediation sessions. The lawyers provide legal advice and directly engage in negotiations. This type of mediation can be beneficial for more complex cases or when significant legal issues are involved. It offers the advantage of immediate legal counsel, which can help clarify legal rights and obligations on the spot, potentially expediting the process. However, in lawyer-assisted family mediation, the lawyers often take a central role in negotiating, which can shift the focus from an interest-based discussion to a more adversarial, law-centric approach. This can sometimes lead to solutions that prioritize legal outcomes over the unique needs and interests of the family.

Mediation Without Lawyers: Mediation without lawyers involves the couple working directly with a mediator to reach an agreement. The mediator is a neutral facilitator who helps the parties communicate, negotiate, and resolve disputes. In this type of mediation, the participants consult generally consult with their own independent lawyers outside of the mediation process to receive legal advice. This type of mediation allows the couple to have more direct control over the discussions and the outcomes, and to focus on issues that extend beyond the law.

Whether lawyers participate directly in the mediation process is something that is decided in consultation with the mediator, the participants and their lawyers and determined based on each family’s unique circumstances.

You can learn more about the Family Mediation Process Without Lawyers in our blog How Does Mediation Work for Separation and Divorce In Ontario?

The Role of Lawyers in the Family Mediation Process

Regardless of whether lawyers participate directly by attending mediation sessions or assist their clients outside of the process, independent lawyers serve the following important roles in the mediation process:

1) Providing Legal Information and Advice: Independent lawyers provide mediation participants with information and advice regarding their individual legal rights, obligations and entitlements. This helps mediation participants to understand the law, assess the reasonableness of the positions and options presented in mediation, and to make informed decisions as part of the mediation process.

2) Risk Assessment: Lawyers are experts at assessing potential risks and pitfalls that mediation participants may not have considered. Receiving advice from a lawyer helps participants to understand potential risks and make decisions that align with their long-term interests, and not only their immediate concerns at the time of separation when emotions are often running high.

3) Providing Support: Beyond simply providing legal advice and information, independent lawyers can also be a source of additional support for their clients, helping them to navigate the complexities of separation with understanding and empathy.

4) Preparing a Legally Binding Agreement: At the conclusion of the mediation process, the mediator will provide participants with a mediation report or Memorandum of Understanding summarizing the terms of any agreement reached in mediation. However, it is important to understand that this document is not a legally binding agreement. It is the role of independent lawyers to incorporate any agreement reached in mediation into a legally binding contract, which is usually in the form of a separation agreement in Ontario. You can learn more about the differences between a mediation report and a separation agreement here.

5) Providing Certificates of Independent Legal Advice: In Ontario, family law lawyers commonly sign certificates of independent legal advice in connection with separation agreements. These certificates, signed by the lawyers, confirm that the parties to a separation agreement have reviewed the agreement with their lawyers, understand the terms of the agreement, and have advised their lawyer they are signing the agreement voluntarily and without duress. Certificates of independent legal advice can play a crucial role in the enforceability of separation agreements. Without a signed certificate of independent legal Advice, there is potential increased risk that a separation agreement could be set aside by the court in the future. Due to this increased risk, sometimes lenders will refuse mortgages or other loans to separated spouses who do not have a separation agreement with attached signed certificates of independent legal advice, highlighting the importance of having a lawyer assist you with finalizing your binding agreement.

Choosing the Right Lawyers

Contrary to popular misconceptions, involving independent lawyers should not undermine the collaborative spirit of mediation. On the contrary, the involvement of lawyers often strengthens the integrity of the process by ensuring that participants enter into agreements with clarity, confidence, and a full understanding of their rights and responsibilities.

However, it is important to choose the right lawyers. Under the Divorce Act, in Canada family lawyers have a positive duty to encourage separating spouses to use a family dispute resolution process (such as mediation) prior to applying to court unless it would be inappropriate to do so. Nevertheless, there remain differences in the skill-sets and approaches of different lawyers.

Some lawyers are skilled courtroom advocates who are trained and who have developed expertise for litigation. Other lawyers are themselves mediators or collaborative professionals with specialized training on interest-based negotiation and on how to finalize agreements in an amicable setting.

If you are entering into a family mediation process with the view of reaching an amicable resolution, it is important to choose a lawyer who supports your goals, whose advice you trust and with whom you feel comfortable to communicate openly and honestly.

If you need help finding a lawyer, your mediator can assist by providing a list of lawyers in your area to reach out to.

Conclusion

In conclusion, while mediation offers a constructive and non-confrontational environment for resolving family disputes, the role of independent legal advice remains integral to the integrity and effectiveness of the process. By embracing the support and guidance of independent lawyers, participants empower themselves to make informed decisions, protect their rights, and ultimately achieve fair and sustainable resolutions that serve the best interests of all involved.

At Teal Family Mediation, we recognize the importance of independent legal advice and encourage all participants to seek the guidance of experienced lawyers throughout the mediation process.

Our mediation services are designed to support separating spouses seeking to mediate the terms of a separation agreement without lawyers, but we also provide lawyer assisted mediation services as needed.

Our mediators are also trained collaborative professionals which, allows us to offer collaborative mediation services, a unique form of lawyer-assisted mediation involving the participation of collaborative lawyers which you can learn more about in our upcoming post on Understanding Mediation, Collaborative Law and Collaborative Mediation.

We can work it out. Together.

Teal Family Mediation is team of professional divorce mediators located in Hamilton, Ontario offer mediation services for separating married and common-law couples and co-parents.We offer an alternative to high-cost, inefficient and adversarial court proceedings with an affordable, modern and compassionate approach towards resolution.

We offer services in-person at our offices located in the Ancaster, Meadowlands and virtually from anywhere in Ontario.

 

You can download our free Mediation Guide to learn more about our services or connect with us today to book a complimentary Discovery Call where we can answer any questions you may have.

If you are interested in learning more about how we can help you, let’s connect.

Let’s Connect:

Disclaimer: none of the information in this blog post should be construed as providing legal advice. Should you have questions about your legal rights and obligations, or about your legal process options when you separate, you should consult with an independent lawyer to receive legal advice.