June 22, 2020 | Divorce

Mediation: What you need to know

Divorce and/or separation is extremely tough. We always encourage our clients to try and work out their difference amicably if possible. This is in everyone’s best interest.

So, you might be wondering, are there alternatives to divorcing in court in Canada?

One of the alternative dispute resolutions available in Quebec is mediation.

Family mediation is a conflict resolution method where an impartial mediator helps you and your spouse negotiate a fair and viable agreement. This approach to negotiation allows the needs and requests of each party to be explored in depth, to analyze various settlement options, and allows the participants to select the solution that offers them the best protection for the interests of all family members (https://www.justice.gouv.qc.ca/en/couples-and-families/separation-and-divorce/family-mediation-negotiating-a-fair-agreement/).

The mediator does not make any decisions on your behalf.. However, the mediator may suggest that the parties seek help from a specialist to deal with specific disputes (ex: a property assessor, a lawyer, a psychosocial expert).

At any time, you may suspend the mediation process on your own initiative or at the suggestion of the mediator, to seek independent legal advice from your lawyer.

In some situations, such as cases involving domestic violence, family mediation is unlikely to be appropriate because of the power imbalance and struggle that already exists, however there are always exceptions.  

Mediation can be comprehensive or partial. It allows former spouses to settle their differences with respect to child custody, support payments and the division of property, covering some (partial mediation) or all (comprehensive mediation) of these topics.

Mediation is confidential and takes place behind closed doors. Nothing discussed, established, or revealed during your mediation sessions can be used as evidence in court by you or your lawyer, without the other spouses consent.

Read More: Terms Should Be Included In A Separation/Divorce Agreement

All parents with dependent children can use mediation at any time:

  • when you are looking for information or want to complete an amicable agreement following your  separation (before starting court proceedings);

  • when you want to reach an agreement without having it homologated by the court; however, this type of agreement has no legal effect and, as a result, if it is not respected the injured party must apply to the court;

  • when you have filed an application for divorce or legal separation (if they you are married) or an application to determine custody, access rights and support payments (common law spouses), but have not yet been heard by the court because you disagree on custody, support or the family patrimony and other patrimonial rights resulting from the marriage;

  • when you have filed an application to review a judgment in connection with a dispute over custody, access or support;

  • when you have obtained a judgment or reached an agreement, but now wish to make certain changes based on a change of circumstance.

The following topics may be discussed during your mediation session:

  • Share of parental responsibilities :

    • Parental authority (important decisions concerning the children: health, religion, education…).

    • Custody time and access rights.

    • Sharing of financial responsibilities (child support payments).

  • The division of property, including the family patrimony and other patrimonial rights resulting from the marriage.

  • The division of property acquired jointly while you were living together.

  • Financial support provided by one spouse (in the case of a marriage or civil union, or in the case of a de facto union if support was provided for in a cohabitation contract).

Mediation sessions require the presence of both spouses with the mediator.

Free family mediation sessions are offered for couples with children of minor age (under 18 years old), or dependent children who are over 18, up to a fixed number of hours depending on your situation. 

You are entitled to a session of 2 hours and 30 minutes on parenting after separation, in addition to:

  • 5 hours of mediation, if you are in the process of separating,

  • 2 hours and 30 minutes of mediation, if you already have an agreement or court judgment but wish to have it reviewed, if you and your former spouse have already received family mediation services, or if you have already obtained a judgment ordering separation from bed and board.

The Ministère de la Justice pays the fees of an accredited family mediator for the hours of mediation provided free of charge under the Regulation respecting family mediation. Some funding for free mediation is also provided by the federal government’s Canadian Family Justice Fund. The amount prescribed by regulation is $110/hour, if it is over it will not be paid by the Ministère. The following costs are not covered: administrative fees such as file opening fees, long-distance calls and photocopying, any extra hours needed to reach an agreement, the costs and fees paid to obtain a court judgment.

You may, if you wish, have your agreement homologated by a special clerk, in order for it to be enforceable. If this is done, Revenu Québec will collect the necessary support payments, unless you request for an exemption, and provide the necessary security.

However, you may also decide not to have your agreement homologated, however we would not recommend that. It the agreement is not homologated, it is not equivalent to a court judgment, Revenu Québec will not collect the support payments and you will have to agree with the other parent on how the support will be paid. Regardless, you need a court judgment in order to obtain your divorce.

In both situations, you are eligible for 2 hours and 30 minutes of free mediation every time your situation changes, if it requires the judgment or your agreement to be reviewed.

If you have any questions, do not hesitate to contact our best family lawyer in Montreal!