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Happy New Year! I was recently told that January has the highest number of new Family Court Application filings. This shouldn’t really surprise me; people often choose to wait until after Christmas to separate - feeling they don’t want to “ruin” Christmas. What does surprise me, however, is what still appears to be an automatic choice to start a court application, to deal with a separation.
In 1997, the year I first began to practice family law in Muskoka, court was an automatic choice to get things rolling. Sure we had some clients seeking a separation agreement, but certainly the majority of clients expected to go to court – I suppose court was our “separation culture”. I am pleased to look back over these past 23 years and acknowledge the positive changes that have taken place in this culture of resolving family law disputes. Many people now look to mediation as their first option. The stats tell us that mediated agreements, such as parenting plans and support arrangements, are far more likely to “stick”, than a court order. This is, in part, because the two involved have crafted it – they have heard each other, explored options, and crafted an agreement that works for them. Court Orders, on the other hand, can result in a regime that doesn’t work for either parent. That results in one parent, or the other, often returning the matter to court. Mediation is also a fantastic way to deal with property issues. Imagine working through property statements, together, with a neutral person. You are able to speak about each item; discuss valuations, explain why you feel as you do, and agree as to what valuations and documents still need to be obtained, so that each person has a clear understanding of the financial picture. You are able to sort out how things will work; for example, whom owes who money, and will it be paid or will assets be transferred instead. The agreement is personalized to work for the two people involved.
Over the past few years, I only encouraged a court application if the other person would not engage in a negotiation process, would not provide financial disclosure, if the two parties were simply too far apart in their “positions” or, on the rare occasion, if there was an emergency. In my practice, these became the exceptions and not the norm. More recently, I have chosen to limit my court involvement to representing children and assisting as duty counsel - I now leave the court battles to others. Don’t get me wrong – some cases need to go to court, and you must get your own legal advice to assist you in making those decisions. I simply want to remind you that court is not a “quick fix”. Don’t start a court application in January, simply because you chose to wait for the Christmas season to pass and are now impatient to start your new life. Court is not quick. Court is not where you will be “heard." Court is not a process for your children, if there is another way to try first. If you have just told your partner you wish to separate, know that he/she is now just starting his/her grief process. You are likely so much further along. Understand there needs to be a delay for your partner, as the decision sinks in for him/her. Consider seeing a divorce coach while you are waiting. There are steps you can take to move yourself forward in positive, healthy ways, by making conscious decisions. I wish that for you in 2020.