The Separation Process
You have a variety of options when it comes to the separation process.
Without the proper knowledge about your options, it can be challenging to know which one to do.
When meeting with our team, we can assess your situation, which allows us to fully understand where you are right now and where you want to go. We can also provide rough calculations of your entitlement and obligations, breaking down how these calculations are done in real-time.
Once we understand your unique position, we will break down the best way to proceed:
Each method has pros and cons, and our team will discuss them with you to make an informed decision.
Processes in Family Law
Negotiation is where we try to resolve the issues through discussions, meetings and/or written settlement proposals. Most cases at least start with this process.
Mediation
Mediation involves retaining a qualified mediator to assist you in reaching agreement either with or without the assistance of counsel. The kind of mediator you need will depend on the issues involved. For example, if parenting is in dispute, it is helpful to have a social worker involved, as he or she will be familiar with the typical problems, complexities and the needs of the child or children.
Mediators do not decide for you, and cannot make decisions that are binding. Mediation can be “open” or “closed”. Open mediation means that the mediator can do a report and statements made during mediation are not confidential. This can result in positioning and can inhibit honest discussions, so is not generally used in family law matters. Closed mediation is confidential and no report is made unless the parties reach agreement.
Arbitration
An alternative to court is to engage in Arbitration, again with a suitable professional. Once you agree to arbitration, the arbitrator will control the process and make all interim and final decisions.
Arbitrations attract less media attention as they are confidential and therefore are attractive to those who are concerned about divulging sensitive information.
Collaborative Family Law Process
Collaborative family law is a form of negotiation in which the partners address their individual needs and expectations with less emphasis on their rights and obligations. Collaborative family law lawyers generally specialize in this field and know how to de-escalate and keep conversations productive.
You must agree in advance and in writing to the terms of collaborative negotiation. If the matter is not resolved through the collaborative process, each partner must retain new counsel because the collaborative lawyers will not go to court. Other professionals such as parenting coordinators, financial advisors, therapists, and actuaries can assist in collaborative negotiations. Elise is collaboratively certified, but is not taking on formal collaborative cases at this time. While Jacqueline has not completed collaborative training, Jacqueline and Elise have worked on informal collaborative cases.
Court Litigation Family Law Process
Court application can be a consideration if immediate relief or support is needed. The court system is particularly valuable when the partners cannot agree or if one partner is refusing to provide disclosure promptly. In such instances, a judge can make orders on a temporary or permanent basis.
The court process involves multiple steps, and while progression is generally prolonged and expensive, it is sometimes necessary.
A case conference is a relatively informal meeting with a Judge to resolve or narrow the issues. The Judge may meet with the lawyers only or with the parties and their lawyers to give their preliminary views. Procedural decisions, including standard orders on disclosure of documents or child support, can be made at a case conference, while substantive decisions or factual disputes are not decided at a case conference.
If a decision needs to be made before the end of the proceeding, the party seeking the order must bring a motion. This decision may be necessary when the parties cannot agree on the parenting schedule or the amount of support to be paid pending a final determination. Motions are determined by judges based on written materials, such as affidavits and financial statements, and oral arguments by the lawyers.
The parties can be present for hearing the motion but are not required or permitted to speak. It is sometimes helpful to be present to see what is happening and get an understanding of the Judge’s thought process.
The next step is a settlement conference, which is very similar to a case conference. The difference is that the settlement conference is conducted at a later stage when more information is available. The focus of the conference is settlement. A trial date is often set during a settlement conference.
A trial management conference is held with a Judge before the trial itself. This conference is when details of the trial are reviewed. Components may include the number of witnesses, whether there will be expert witnesses, if special needs must be taken into account (e.g. interpreters), how many days the trial is expected to take.
Before the pandemic, it took roughly two years from starting your application to get to trial. Now, depending on the Court, it may take the same or longer. The vast majority of cases are settled before the trial date, with only about five percent of cases making it to trial.
The Judge determines the conduct of the trial and the mood of the courtroom. Some Judges are very efficient and communicate clearly when they do not need to hear more on specific points. Other Judges may conduct trials in precisely the opposite manner.
At the start of a trial, each lawyer makes an opening statement outlining the issues and evidence that can be expected.
Witnesses provide evidence on the invitation of an applicant’s lawyer and may be cross-examined by opposing counsel. After all evidence is presented, each lawyer makes a closing argument to persuade the Judge to rely on any case law and act in his or her client’s favor.
During a trial, Jacqueline is exceptionally focused on expectations, goals and points that need proof—and she sticks to this with her signature tenacity and cool-headed professionalism. Grandstanding, showboating, or displays of arrogance and insults are not her style.
A Judge will reserve his or her decision after the typical days of evidence and argument. Conditions that have been in place up until this time continue until the Judge releases a decision. Judges sometimes do this in court, or they may communicate the decision by fax.
At this point, there is usually an opportunity to address which party should be paying costs to the other. There are usually no costs when the success is mixed. If the decision is obviously in one party’s favor, the opposing party will have to pay some portion of the successor’s costs.
After the trial, one side or the other prepares the formal judgment for the Judge’s signature. If other minor issues need to be addressed, the same Judge can be approached. Disputes are uncommon but can arise due to differing interpretations of the Judge’s decision
An appeal may be considered when it can be demonstrated that the Judge made a significant error. An outcome that favors one party over the other is not grounds for appeal.
The Court and the type of award being appealed will determine the appeal route and deadline to appeal. A full transcript of the trial is typically required. The appeal process is as slow as the trial process and, unless there is urgency, most appeals take 18 to 24 months to be heard.
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Jacqueline Mills is proud to offer arbitration services to limit the time commitment, costs and mental stress associated with going to court. Click here to find out if arbitration is right for you.