Am I Headed to Family Court?

Mediate, Don’t Litigate

If you are separating from your spouse, there are two ways to settle the legal issues that arise upon separation. The first approach is by way of a Separation Agreement. If you and your spouse can agree on how you want to resolve the legal issues, you can do so in a written agreement. Once that agreement is signed by both of you, it is a contract that is legally binding.

Naturally, as in any negotiation, arriving at an agreement requires that both parties be reasonable and co-operative with one another. If this is not possible due to a high level of conflict then the two of you are likely headed for family court where a judge will determine how the legal issues will be resolved.

Understand that a judge may not share your views on how the legal issues should be resolved and, perhaps most importantly, what is in the best interests of your child or children! This is just one of the reasons why a negotiated settlement of the legal issues is the better way to go.

Sometimes, a skilled mediator can help the parties resolve the legal issues when the parties have been unable to do so on their own. Mediation should always be considered before a decision is made to commence an application in family court.

Separation Agreements

For many good reasons, the significant legal costs of a lengthy court battle for example, getting to a middle ground by way of an agreement that both parties can live with is, by far, a better way of settling the legal issues that arise when couples separate. An agreement can be arrived at much sooner than a proceeding in family court. Both parties are then free to devote their energies to getting on with life rather than being embroiled in court proceedings for, potentially, a lengthy period of time!

A negotiated settlement is also a much less stressful process and, at the end of the day, a negotiated agreement is likely a much better result for both parties since it represents a middle ground that both parties contributed to and can be much more flexible than an order imposed by the court! In family court, you may end up with a result imposed upon you by a complete stranger (a judge). I always tell my clients that you might get a court order that neither one of you like!

Furthermore, a written agreement can be amended quickly and easily whereas, with a court order, if circumstances change the parties must, once again, go to court to have the order changed.

One last word on legal costs. At the end of a legal proceeding in Canada, the successful party can ask the court to make an order indemnifying that party from the legal costs she/he incurred in having to bring the proceeding. Where the court makes an order requiring a party to pay some, or all, of the legal costs incurred by the other side, that consequence can amount to a devastating financial blow for that person!

For the party against whom a costs order is made, not only do they pay their own lawyer for the costs of a lengthy court battle, but they must then pay some, or all, of the costs incurred by the other side!

Accordingly, it is always wise to employ your best efforts toward reaching an agreement with your spouse on all of the issues.

The ‘bottom line’ is that you should try to avoid going to family court if at all possible. Once you have agreed upon how to settle the legal issues, both of you can move on with your lives and devote your mental energies to advancing your aims in life rather than expending many months, or perhaps years, of mental energy embroiled in a family court proceeding.

I hope that you have found this useful. If you would like to ask questions or make comments I would invite you to do so in the ‘Leave a Reply’ section below. Or, if you would like to receive updates to the content at Family Law Woodstock please enter your first name and best email in the form below. Finally, if you are separating from your spouse in the Upper St. John River Valley of New Brunswick, call Langdon Law at 506.497.2560 for a consultation. Offices in Woodstock, Hartland and Florenceville-Bristol.

Grant Rayner*

*Grant is a member of the Law Society of Ontario. He has permission from the Law Society of New Brunswick to practice as a visiting lawyer with the firm Langdon Law pending the transfer of his membership with the Law Society in Ontario to the Law Society of New Brunswick.