In most cases when people separate or divorce in Ontario, they don’t end up resolving everything by way of a trial in family court.  They try to work out a resolution first.  One alternative is the Collaborative Family Law Process which is designed to help separating spouses resolve issues through structured negotiation.

For many families, collaborative family law offers a more respectful, private and practical way to move forward. It can be especially effective where both parties want to avoid court and are prepared to work toward a settlement with professional support.

In many Collaborative family law matters the process is not limited to just the two parties and their lawyers.  In most cases the process is built around a team approach that includes:

  • One lawyer for each party
  • One neutral financial professional
  • One neutral family professional

This team model is one of the reasons collaborative family law can work so well in the right case.  At the same time, it is not the right fit for every family. The process depends on cooperation, transparency, and a genuine commitment to resolution.

This article will explain the benefits and pitfalls of the Collaborative family law process in Ontario with a focus on when it may be a good fit and when it may not be the best way to get to a separation agreement.

What is Collaborative Family Law?

Collaborative family law is a voluntary, out-of-court dispute resolution process.  Each party has their own Collaborative lawyer (a lawyer with special training and experience, on top of the “usual” qualifications and experience in family law) and everyone agrees to try to resolve the family law issues using a problem-solving approach rather than though contested court proceedings.

The law itself remains the same and the lawyers are there to make sure their clients are aware of their legal obligations and entitlements.  The lawyer-client relationship remains confidential, and lawyers are held to the same high standards and Rules of Professional Conduct as in any legal matter.

The process is commonly used to address all of the issues arising from a separation, such as:

  • parenting arrangements;
  • child support;
  • spousal support;
  • division of property;
  • equalization of net family property;
  • the matrimonial home;
  • budgets and future financial planning; and
  • communication and co-parenting arrangements.

A key feature of Collaborative family law is the Participation Agreement.  This agreement generally confirms that the parties and their lawyers are committed to resolving matters respectfully, outside of court.  They commit to transparency (including complete financial disclosure), confidentiality within the process, meeting timelines and good-faith negotiations.  If the process breaks down the Collaborative lawyers withdraw and the parties must retain new counsel if they move to a litigation process.

The Collaborative Team Approach

When it works, the team of professionals makes for a streamlined, efficient, money-saving process.

Each party has their own lawyer to provide legal advice, explain their rights and obligations, review options and assist with the problem solving, negotiation and settlement.

The parties work with one neutral financial professional (which can be done in meetings together or separately).  This professional helps both parties understand the financial picture in a clear and organized way.  While many people will say they don’t need a financial professional because it is the other spouse who doesn’t understand the finances, the matter cannot move forward until both parties have a clear understanding of the financial issues so they can make decisions.  The financial professional might assist with:

  • gathering and organizing financial disclosure;
  • preparing net family property calculations;
  • analyzing income for support purposes;
  • explaining budgets and cash flow;
  • reviewing tax considerations; and
  • considering settlement options and their financial effects.

This is a less expensive alternative to the lawyers doing separately for each client it at their higher rates.

They also work with one neutral family professional who helps manage communication, reduce conflict and keeps everybody focused on productive decision-making.  This may include assistance with:

  • assisting with parenting and co-parenting discussions and helping create parenting plans;
  • improving communication during meetings;
  • managing emotional roadblocks;
  • supporting child-focused discussions;
  • helping the parties identify interests and priorities; and
  • reducing misunderstandings.

It might sound like this team of professionals will create costs and make for a lengthier process.  In fact, when it works well, the team-based approach does the exact opposite.  The use of neutral professionals…

  1. reduces duplication;

If each party retains their own separate financial experts or parenting professionals the process can become more expensive and more adversarial.  A neutral professional serves the team jointly, with both parties sharing in the cost, which can reduce duplication of work and competing expert opinions.

  1. improves the quality of decision making;

Family law decisions are rarely purely legal.  They are emotional, practical and financial.  Neutral professionals can help the parties understand the real-world impact of different options.  For example,

  • a financial professional might show whether a proposed support arrangement is sustainable.
  • a family professional might help parentis understand how communicating patters are affecting the children.
  • both professionals might help the parties move away from fixed positions and toward practical solutions.
  1. helps lower conflict and support child-focused outcomes when children are involved; and
  2. increases trust in the process.

When financial information is explained by a neutral financial professional, or communication issues are managed by a neutral family professional, parties often have more confidence in the process than if it feels like a contest between lawyers.

Pros and Cons of Collaborative Family Law

The good:

  1. It is less adversarial than litigation. It is designed to reduce unnecessary conflict.  The lawyers don’t waste their clients’ money on adversarial letters and threats.  The process is focused on settlement, not courtroom positioning.  This can be helpful important when parents need to preserve a workable post-separation relationship.
  2. Each party has independent legal advice. This is built-in as both parties are required to have their own lawyers who must ensure that they understand their legal rights and obligations so they can make informed decisions.
  3. Both lawyers must be certified, trained Collaborative lawyers. This drastically reduces the potential for one party to retain a litigious lawyer who will take unreasonable positions for a client.  Lawyers must sign the Participation Agreement.
  4. The team approach can improve outcomes. Legal, financial and interpersonal issues can be addressed in a coordinated way rather than in isolation.
  5. It offers privacy. All of the negotiations and information-sharing takes place privately rather than through public court proceedings.  The participation agreement offers an additional guarantee of confidentiality specific to the Collaborative process.
  6. It allows for tailored solutions. The parties, with the help of their professional team, can develop solutions that fit their actual circumstances.  This is useful in cases involving complex parenting schedules, self employment or business income, unusual expense-sharing arrangements, tax-sensitive property issues, etc.
  7. It can be more efficient than court. Where both parties are committed to the process, Collaborative family law can resolve matters more quickly and with less procedural delay than litigation.
  8. It can better support future co-parenting. For parents, the end of the relationship does not end the need to work together in the children’s best interests.  A process that improves communication and encourages respectful problem-solving may provide long term benefits beyond the settlement itself.

The bad:

  1. It depends on good faith participation. Collaborative family law only works if both parties are prepared to participate honestly and constructively. If one party is using the process to delay, avoid making disclosure or refuse meaningful compromise the process will fail.
  2. It is not appropriate in some cases involving power imbalance. Where there is coercive control, intimidation, fear or family violence, this process may not provide a fair or safe negotiating environment. The professionals must always consider the suitability of this process, and their ability to manage it in a way that results in a balanced agreement, carefully.
  3. Full financial disclosure is essential. Every family law process depends on transparent disclosure. If one party is hiding assets, understanding income or refusing to provide documents the other party might have to go to court to compel production and enforce compliance.  A process where parties agree that they will not even threaten court action is not always going to be appropriate.
  4. If the process fails, new lawyers are required. This could end up costing both parties a lot of money, whatever the reason is for the failed process.
  5. It is not suited to cases requiring urgent court remedies. Some cases require immediate judicial intervention, for example, where there are urgent parenting concerns, serious support issues or risk relating to preservation of assets that cannot immediate be addressed by way of a negotiated settlement.
  6. It is not automatically cheaper. Although the use of neutrals can improve efficiency, Collaborative law is not always less expensive than every other process.  Costs will depend on complexity, the number of meetings required, the level of cooperation and whether the matter settles.

When might Collaborative Family Law be a good fit?

Collaborative family law will be a strong option where:

  • both parties want to avoid court
  • there is a willingness to negotiate in good faith
  • full financial disclosure is likely to be exchanged voluntarily
  • the parties would benefit from support with communication
  • there are children and an ongoing co-parenting relationship
  • the financial issues would benefit from neutral financial analysis
  • the family values privacy and flexibility
  • the parties want a structured but settlement-focused process

It is often particularly effective where the legal issues are intertwined with emotional and financial complexity. In those cases, the team model can be a substantial advantage.

…and when might it be a bad fit?

Collaborative family law will be unsuitable where:

  • there is family violence, coercive control, or serious intimidation
  • one party is unresponsive
  • one party is hiding assets or refusing disclosure
  • urgent court orders are needed
  • the conflict is so high that meaningful negotiation is unlikely
  • one or both parties want a judicial determination
  • the risk of changing lawyers if the process fails is unacceptable

The process is not simply a more polite version of litigation. It requires a fundamentally different level of participation and trust.

The central question is not whether collaborative family law is always better than court. The real question is whether it is the right fit for the particular family, the particular issues, and the particular dynamics involved. A strong Collaborative family lawyer will assess the suitability of every available process option with a client to determine the best way forward.