Dispute Resolution Clause in Ontario
Gail Vaz-Oxlade is author of 16 books on finances and best known in her role as host of TV’s Til Debt Do Us Part, Princess and Money Moron.
Ask Gail Vaz-Oxlade
For most people divorce is less about legalities and more about kids, tax implications and making smart money decisions. Best-selling financial author Gail Vaz-Oxlade brings common sense wisdom to answer your questions about Separation Agreements and divorce in Ontario.
The Dispute Resolution Clause
Before you sign a Separation Agreement, always take a look at the section called “dispute resolution.” This is the section which discusses what happens when an inevetiable dispute arises between two parents or two ex-spouses and where and how they will resolve their issues. Meaning, if we can’t agree or someone is not doing what they are supposed to do, do I go to court, mediate or arbitrate?
If you don’t have a clause of any kind regarding dispute resolution in your separation agreement and either you or your ex breaches the agreement, the aggrieved party often only has the option of going to court. Court is expensive and usually means that both parties are no longer working together and are in a major dispute which can only be resolved by a judge.
In Family Law it is typical to instead include a mediation provision which allows the parties to meet and have a mediator try and resolve the dispute before going forward to court.
Its important to review and receive the proper advice when it comes to the dispute resolution section of a separation agreement. Pay attention to Ontario laws as applicable, where venue or the place where the dispute will be resolved (bad wording could nean that it may be thousands of kms away). Remember the best time to include language for dispute resolution is before the dispute arises!!!
Dispute Resolution Clause: The Separation Agreement
Your Separation Agreement and more specifically the parts dealing with support and the parenting plan, will include a legal clause called the dispute resolution process that explains how any potential future disagreements will be dealt with. It is an important clause that ensures you the option to pursue any number of potential dispute resolution avenues instead of only being able to resolve issues with lawyers or court. Typically negotiations that were originally resolved out of court will include a similar family dispute resolution process to deal with any potential future agreements.
Dispute Resolution Clause: What This Means?
If a dispute arises out of, or in connection with this Separation Agreement, you and your ex spouse agree to meet together to find a resolution before resorting to court or litigation. This may mean, meeting together on your own, through a trusted friend or family or through a mediator. If that does not work, you may choose to meet with your lawyers.
According to the Family Law Act, all information and communications exchanged during this process are only for the purpose of negotiations and settling the issue only and is to be treated as confidential by the parties and their representatives, unless otherwise required by law.
“Family settlements that are created through mediation and settled out of court are statistically proven to minimize future conflict.”
What It Means When Your Spouse Suggests Mediation
- Mediation is typically cheaper than lawyers or the courts
- Mediation tends to be the faster divorce process
- The courts will require you to consider mediation first
- Mediation has an excellent success rate
Why use a Dispute Resolution Clause rather than just go to court?
Although litigation in the courts can be slow and expensive there are other processes that can act with speed and expertise especially infor Family Law. Ex-spouses or co-parents usually prefer to avoid litigation. They may wish to retain the flexibility of a mediatied that courts cannot often provide.
Courts determine disputes by applying the law; they must do that regardless of the personal interests or opportunity that may exist for either spouse were they to renegotiate. Courts do not seek to redesign the contract or even return it to the wishes of one party or the other.
The Courts will instead only apply legal rules to a disputed contract. Furthermore, the courts must conduct their work in open public hearings. A smart dispute resolution clause allows parties to retain control over not just the dispute but the flexibility available from a negotiated agreement and that is typically not not available from Courts.