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How do we decide our family law issues?

In family law, you both must think about getting help to resolve your issues out of court.

You must think about using alternative dispute resolution (ADR) or a family dispute resolution process to resolve your issues out of court if it is suitable for you. Some people choose ADR because it can be cheaper and faster than going to court.

ADR is not always suitable in family violence situations because:

• You may be afraid of your partner.
• You might find it difficult to talk about your experiences of violence. Or, the ADR professional might not understand the impact of violence on you or its impact on your children.
• Your partner might be very charming when other people are around. This might lead the ADR professional to think that certain arrangements, such as shared decision-making responsibility, can work.

ADR may also not be suitable if there are serious mental health or drug abuse issues.

ADR is voluntary. So even though you must think about trying it, you cannot be forced to use it.

Mediation

Mediation is one type of ADR. A mediator does not give legal advice. They can help you and your partner talk about your legal issues and can help you reach a solution you both agree with. But they will not make a decision for you if you and your partner cannot agree.

Mediators are trained to:

• mediate safely and look for signs of partner abuse
• not take sides when working with partners with different interests
• help each partner see the other’s point of view
• help partners agree when they see they have similar interests and concerns

In some cases of family violence, a mediator can mediate in a way that makes the process fair and safe. For example, if you are not comfortable being in the same room as your partner, the mediator can talk to each of you in separate rooms, by telephone, or online. They can plan for both of you to come and go at different times.

In other cases, the mediator may decide that they cannot make the process fair or safe. If this happens, going to court may be your only option to resolve your issues.

Even if you agree to try mediation, you do not have to agree to anything. If you are uncomfortable with something, tell the mediator that you need time to speak to a lawyer, or to think about it.

Finding a mediator

If you decide to try mediation, make sure to find a mediator who has been trained to handle cases involving family violence. If you are not sure, ask the mediator about their training and experience.

Each family court location in Ontario offers subsidized mediation services. You can get up to 8 hours of mediation for a fee that is based on your and your partner’s incomes. This service is available whether or not you have a court case. If you have a court case, you can get up to 2 hours of mediation for free at the court. See ontario.ca/page/family-mediation-service-providers.

You can also find mediators with lower fees through JusticeNet. JusticeNet is a not-for-profit that helps people whose income is too high to get legal aid and too low to afford legal fees. See justicenet.ca/professions.

There are several organizations that set standards for mediators in Ontario. You can find an accredited or certified mediator through:

• the Ontario Association for Family Mediation
• Family Mediation Canada
• the ADR Institute of Ontario

An accredited or certified mediator has completed special training and has professional liability insurance. This means that they have insurance in case someone sues them for not mediating properly.

Other types of ADR

There are other types of ADR too. For example, if you want a final decision in case you cannot reach an agreement with your partner, you can use arbitration or parenting coordination.

Going to court

In some cases, the only way to resolve your family law issues is by going to family court.

If you have a lawyer, it is important to tell them about any abuse in your relationship with your partner. It is also important to let them know if you are involved in a criminal case at the same time.

Your lawyer can use this information to try and get appropriate orders for your situation. For example, your lawyer can let the judge know that an order for shared decision-making responsibility is not appropriate because your partner will use it to frighten or threaten you.

Or your lawyer might be able to get a temporary order about decision-making responsibility right away if they can show that a delay could harm either you or your children.

Choose the right court

There are 3 courts that deal with family law issues in Ontario:

• Ontario Court of Justice
• Superior Court of Justice
• Family Court branch of the Superior Court of Justice

Only the Family Court branch of the Superior Court of Justice can deal with all family law issues. If you do not have this court where you or your children live, call you local courthouse to ask which court you should go to. Or, you can go to www.attorneygeneral.jus.gov.on.ca/english, click on “Court Services” and then “Court addresses”.

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