Choosing the right path in a divorce can reduce stress

By Tony Poland, LegalMatters Staff • Divorces can be stressful and expensive, which is why it is important to carefully consider all your options to ensure you are taking the right path, says Toronto family lawyer A. Julia P. Tremain.

Tremain, a partner with Waddell Phillips Professional Corporation, says people have four choices when divorcing: litigation, mediation, arbitration or collaborative family law.

“With each new client I will look at all the issues and how ready they are to deal with them before suggesting the options available, “she tells LegalMattersCanada.ca. “Ultimately, it is the client’s decision but, depending on what they are hoping to achieve, I typically encourage them to consider something other than litigation.

‘Court is expensive and time-consuming

“With the majority of my clients, there is an appetite with both parties to try work things out to avoid court,” Tremain adds. “Court is expensive and time-consuming. Litigation is usually the lender of last resort unless there is some sort of urgent issue that requires adjudication. Once you get into the court process, it can be difficult to get out of it.”

She says going to trial “forces people to become a little more positional.”

“Rather than trying to find a meeting of the minds both sides are trying to convince a judge that their way is the right way,” Tremain says. “Some people will go to court asking for everything that they can think of and it is not necessarily reasonable.”

The downside of litigation is that you are putting the decision in the hands of a judge who may not be sympathetic to your arguments, she says. 

If a couple has been together a short time, there is generally less to fight about, especially if there are no children or few financial considerations, says Tremain.

“But for people who have been married for a longer period there might be assets, such as a home or pensions,” she says. “There might be children and disagreements over access and parenting decisions. Both sides might be firmly entrenched in their positions. There might be an issue of domestic violence.  Sometimes there is no other option but to go to court.”

Try to work out an arrangement

Many times couples will try to work out an arrangement between themselves with the help of their lawyers, says Tremain.

“Often they can identify the issues and can negotiate something they are both comfortable with,” she says. “But they may get stuck on a couple of issues. They may need the help of a mediator.”

Tremain says a mediator is an impartial third party who will not decide for the couple “but can get them in a room and get them talking.”

 “A mediator can help them think about potential options for settlement,” she says. “Perhaps offer different ways of looking at the problems and get them a little closer to what the actual issues are and how to resolve them.

And the beauty of mediation is that it is completely voluntary,” Tremain adds. “People can walk away at any time. They are not forced into accepting an agreement, unlike a judge’s ruling. It gives them some control over the situation.”

She says a couple will agree on which mediator to hire depending on their needs. For example, they may be unable to reach an agreement on parenting issues and will want someone with experience in that area.

“Mediation can be extremely effective,” says Tremain. “Generally, you don’t enter into it unless you have some desire to try and resolve your issues.”

Arbitration an option if mediation fails

If mediation fails, couples can turn to an arbitrator, who serves almost like a judge to make a decision, she says.

“Of course, the difference between arbitration and a judge is you get to select the arbitrator,” says Tremain. “People will sometimes use a combination of mediation and arbitration.”

Arbitration can be much quicker than going through the courts because you don’t have to wait for a trial, she says.

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“You only have to worry about your availability and that of the arbitrator so it may only take a few months to resolve your issues,” Tremain says. “Whereas courts can take years, especially in light of recent backlogs caused by the pandemic.”

While arbitration closely resembles a court hearing, it is held in private instead of a trial before a judge.

She says it should also be noted that couples must voluntarily consent to arbitration and agree to forego their right to litigation. And while the arbitrator has the authority to make a binding decision, any ruling would be subject to an agreed-upon rights of appeal.

Collaborative practice is a fairly new approach

One of the newer approaches to family law is collaborative practice, says Tremain. This relies on a free exchange of information between parties. Both sides will have their own lawyer specially trained in collaborative practice. Other professionals can be brought in, such as child specialists, to find a resolution. If the two sides fail to reach a settlement the lawyers and professionals are disqualified from further participation if the case moves to trial.

“It is similar to mediation but not quite. There is no mediator but you have the two lawyers working very closely,” says Tremain. “As the name implies it is meant to be a collaborative process. There is much more sharing of information.

“For example, you might retain a financial person who comes in to assist both parties,” she adds. “This person would examine the finances, meet with both parties and their counsel then look at different ways to structure equalization or spousal support equitably. The goal is to maximize everybody’s position.”

Tremain says the two lawyers would do most of the work in terms of communicating with each other while attempting to find solutions that work for both parties. 

‘You are thinking about the whole family’

“As a collaborative lawyer, you are thinking about the whole family, both spouses and any children,” she says. “It is not just about your client as it would be in a litigation scenario where your job is to advocate solely for them.

“It works well if people can commit the time and the effort. With collaborative law you get into deep issues, so the process takes longer than mediation.”

Tremain says in most cases she sees clients prefer a less combative approach, as opposed to jumping immediately to litigation.

“Typically, when people separate they prefer a different option to court,” she says. “That does not mean litigation is off the table. I encourage my clients to choose a direction from the least intrusive to the most intrusive. 

“Everyone has their issues so it is helpful to have legal counsel who can talk about the different ways to proceed and go over what might work best for that client.”