The traditional form of lawyer-assisted negotiations are conducted by the parties’ lawyers, with a focus on what each believes a judge would decide if the case went to court.
Once a resolution is reached, the lawyers will draft a legally binding Separation Agreement to be signed, or will have a consent Order granted through the court.
If an agreement is not reached, one of the lawyers will likely begin a court process.
This process could either result in a quick resolution or may be very time-consuming and costly depending on the effectiveness and length of the negotiations or court proceedings.
Arbitration is a voluntary process where the parties agree to give a neutral third party the authority to make binding decisions about the issues that are in dispute; essentially, hiring a private judge.
Decisions made by the arbitrator are just as legally binding as if they were made by a judge at court.
This can be faster and less costly than court, however, parties are stuck with the decision to arbitrate even if they feel it is not working well for them and they wish to return to the traditional court process.
It can also be difficult or impossible to appeal the decision of an arbitrator.
Going to Court
For most couples, going to court is the last resort. Most clients hire lawyers to represent their interests at court, however, in Canada you are allowed to represent yourself.
The traditional court process involves several court appearances, in the form of conferences where a judge would encourage the parties to reach a settlement.
If conferences fail to help the parties reach a n based on judicial recommendations, lawyers can make Motions to ask judges to make orders, either temporary or final, for their clients.
Each lawyer presents legal arguments for their position and the judge is the final decision-maker. The parties have to abide by the court orders, even if they do not agree with them.
Eventually, a full trial may be necessary, which would involve witnesses, arguments and legal research.
It can take several years for a family law file to make its way through the various court procedures and is very costly, stressful and tends to increase animosity between the parties.
However, it is sometimes necessary to turn to the courts to decide what should happen if the parties are unable to reach any agreement.
Self-Represented Litigants (SRLs)
Going to court without a family lawyer is called being a “Self-Represented Litigant,” or SRL.
This is allowed in Canada’s court system, but the biggest drawback is that SRLs are held to the same standard as family lawyers.
In other words, you will be expected to know all the relevant laws and how previous Judges have interpreted those law, understand how to draft all the legal documents, observe all legal protocols, know how to address the Judge, and so on.
Neither the Judge nor the family lawyer representing your spouse are allowed to help an SRL not stumble, because that would be a conflict of interest for the party paying for the services of a family lawyer.
Judges try to make allowances for SLRs, but unfortunately, Canada’s courts are not designed for them.