What is Divorce & Family Mediation?
Not every divorce needs to go to court. Divorce and family mediation can be a great—and relatively cheap—option for couples who want to stay out of court. But first, what is a divorce mediation?
Mediation is a form of alternative dispute resolution. Lawyers have a responsibility to advise their clients of the availability of options to help their clients resolve legal issues without going to court.
In short, both spouses meet with a mediator. A mediator is a neutral third party who helps the spouses resolve their legal issues together—without the need for expensive litigation or drawn-out conflict. Family mediators are specially-trained to help people communicate through the emotional turmoil of a divorce.
At Morrison LLP, our mediators are Practicing Mediators with the Alberta Family Mediation Society, and have experience dealing with emotionally-charged situation, and are knowledgeable about the relevant legal issues. Generally, family mediation focuses on the following issues:
- Parenting – Often the hardest issue to deal with is parenting—”who gets the kids?” Our mediators help parents see past their personal differences, and focus their attention on the children’s best interests.
- Child Support – Child support is generally an “easy” issue from a legal standpoint. A mediator can help spouses understand their child support obligations.
- Spousal Support – Spousal support can be tricky for spouses to negotiate on their own. A mediator will help guide couples to a fair spousal support agreement.
- Family Property – A mediator will be able to explain the law in Alberta surrounding family property, and can help spouses craft a property settlement that makes sense for them as individuals, rather than a cookie-cutter solution.
What are the Benefits of Divorce Mediation?
There are many benefits of going through a family or divorce mediation, rather than going to court. For example:
1. Mediation is Cheaper – Mediation is often cheaper than litigation. Not only do the spouses share the costs of the mediator, but often it only takes one or two sessions to work out the main legal issues. This is far cheaper than fighting it out in court for months—sometimes years—on end.
2. Mediation is Faster- It can take months before your application is heard in court—and it may take years before you can secure a trial. A mediator will be able to meet with you and your spouse in a matter of weeks. Not only is this faster than going to court, but it will help you solve issues before they get too complicated.
3. Mediation is Less Stressful – Litigation is very stressful. Not only will you need to prepare many complicated (and expensive) documents, but you may be called to testify at trial. All eyes will be on you. In a mediation you have the chance to resolve your disputes quickly and affordably, without endless delays.
4. Mediation Protects Privacy – Many people do not know this, but what goes to court is typically a matter of public record. This means that documents filed in court may be available to third parties. If nothing else, your “dirty laundry” will likely be aired in Family Chambers, in front of an audience of other people with family law matters. In a mediation, your issues are between you, your spouse, and the mediator.
5. Mediation is Flexible – In a mediation, the spouses have the chance to create their own custom settlement agreement. This lets them resolve their issues in a way that works for them—rather than letting a Judge decide for them. Remember, Judges do not know you, and they may be inclined to provide cookie-cutter solutions in situations where they have to make a fast decision (like in Family Chambers).
6. Mediation Works – People are more likely to follow mediated agreements because they themselves created the agreement.
Should I Use Divorce Mediation?
Mediation can help clients resolve their matters efficiently and economically. Mediation also helps spouses avoid court, which often leads to more conflict between spouses. As a result, the Family Court is often referring parties to attempt mediation before litigating their matters.
We recommend that most newly-separated couples attempt mediation as a first option. If it does not work, at least the spouses can say that they tried. There are certain situations in which mediation will probably not be helpful, for example, when there is a history of family violence.
What is the Mediation Process?
Although every mediation is different, there are a few common steps in the mediation process:
Step 1 – Initial Consult
The first step is to get in touch with a mediator, and see if they are a good fit for your legal issue. Everyone is unique, and some mediators will be able to help you more than others: sometimes you need a strong voice in the room, whereas sometimes you just need a mediator who can nudge you in the right direction. Typically, the mediator will want to meet with both spouses together, in person, before agreeing to mediate the dispute.
Call Morrison LLP at 587-758-1099 and ask to speak to a Practicing Mediator today.
Step 2 – Exchange Financial Information
Once you have hired a mediator, you and your spouse will need to exchange all of your relevant financial information. This information should also be provided to the mediator. Typically, you will need to share information about your income (tax returns or paystubs) and your net worth (bank and investment statements, mortgage documents).
Step 3 – Attend Mediation Sessions
Typically, you will need to book a minimum of two mediation sessions. This will allow the mediator time to understand the personalities of the spouses, and how best to approach the situation. Usually, we start with the least complicated issues on the first session, so that we can build momentum. Once everyone understands the process, we tackle the big issues. Sometimes spouses may require more sessions to reach an agreement, and that is OK. This is a flexible process designed to meet the needs of the separating spouses.
Step 4 – Execute a Mediated Agreement
The mediator will typically prepare an Agreement for the spouses to sign. Depending upon the legal issues involved, the spouses may need to see a lawyer for independent legal advice before the Agreement becomes binding.
Step 5 – Follow the Agreement
Most people have no problem following the terms of a mediated agreement—they made it themselves, after all. In this step, the spouses will need to do things like transfer any properties, close bank accounts, or register their agreement with Maintenance Enforcement. It will depend upon the situation.
If one of the spouses fails to follow the Agreement, then the matter may need to go to court to have it enforced. Typically, the Agreement will contain a paragraph which states that the spouse who breaches the Agreement will need to pay the legal fees of the other spouse.
Divorce Mediation in Alberta – Key Legal Information
Different divorces will have different legal issues. Why? Everyone’s situation is different—some people have children, some do not; others have big McMansions, others have nothing but credit card debt. That said, most divorces revolve around four main legal issues.
1. Parenting (Child Custody)
There are two aspects to any parenting agreement: decision making and parenting time.
1. Decision Making – This refers to the rights and responsibilities that each parent has when it comes to making major decisions about their child’s wellbeing—for example, healthcare, education, and religion.
In Alberta, most parents share decision making when it comes to big questions, but are responsible for small day-to-day decisions, like what to eat and who to visit, on their parenting time.
2. Parenting Time – This refers to the time that the children spend with each parent. Parenting time is usually exercised in person, however, in when parents live far apart, the court may award extra parenting time over the phone or video-chat. There are two main parenting types of parenting schedules: primary parenting and shared parenting.
- Primary Parenting – In this schedule, the child lives with one parent more than 60% of the time, while the other parent has parenting time less than 40% of the time. For example, if the child lives with mom, and stays with dad every second weekend, the mom is said to be the “primary parent”.
- Shared Parenting – In this schedule, the child lives with each parent more than 40% of the time (roughly 50:50). For example, the parents exchange the children on a rotating week-on/week-off schedule, then this would be considered a shared parenting arrangement.
Best Interests of the Children
When making a parenting order, the court may only consider the children’s “best interests”. Although this can mean just about anything, Section 16(3) of the Divorce Act lists some helpful factors, for example:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
This is a broad list, and ultimately your mediator will help you understand which factors are most relevant in your own separation.
For more detailed information, see our article on parenting and decision making.
2. Child Support
Child support is the money paid by one parent to the other parent to help support their child. In Alberta, all parents have a legal responsibility to financially support their child, whether or not the parent spends any time with the child. This is because child support is the right of the child—not the right of the parent receiving child support. This means that parents cannot agreed to refuse child support.
According to the Federal Child Support Guidelines, there are two kinds of child support: Section 3 (monthly) and Section 3 (extraordinary) child support.
1 – Base (Section 3) Child Support– This is the “basic” amount of child support. Typically, it is paid monthly. It covers the child’s “fixed” expenses like food, clothing, shelter, and small incidental expenses like toothpaste or toys. The amount of monthly child support depends upon the payor parent’s income. Revenue Canada provides an online child support calculator which makes it easy for parents to see how much they may be obligated to pay. In cases where parents share parenting, the courts may set-off the parent’s child support obligations so that the overall payment is less.
2 – Extraordinary (Section 7) Child Support – This covers “special or extraordinary” expenses, which typically include:
- Childcare expenses (daycare).
- The child’s medical or dental insurance premiums.
- Healthcare expenses, like braces, prescription drugs, or glasses.
- Extra school expenses, for example, the additional costs of a special German-language program.
- College or university tuition.
- Extracurricular expenses, like hockey registration fees or ballet lessons.
The amount that each parent contributes to a special expenses is based on their proportional incomes. For example, if one parent earns $60,000 annually and the other earns $40,000 annually, then together they would earn $100,000. Therefore, the first parent would pay for 60% of the expenses, while the other would pay for 40% of the expenses.
A parent’s child support obligations do not always end when the child turns 18. They may still be entitled to child support if they enroll in post-secondary education, or if they are unable to become independent for health or psychological reasons.
Child support orders and agreements are eligible to be automatically enforced by the Alberta Maintenance Enforcement Program, provided that a clause specifically allows for this. In this case, MEP will handle all collections actions if the payor refuses to pay.
For more detailed information, please see our article on child support in Alberta.
3. Spousal Support (Alimony)
Spousal support, sometimes called alimony, is the payment made by one spouse to the other spouse for their maintenance and support. Support may be paid monthly, or as a one-time lump sum. Unlike child support, a spouse is not automatically entitled to spousal support. Instead, the spouse claiming spousal support must prove entitlement:
- Compensatory – To prove compensatory entitlement for spousal support, the spouse must show that they made career sacrifices for the benefit of their spouse’s career or the family. For example, if the wife quits her job in Edmonton so that her husband can take a new job in Fort McMurray, she may be entitled to support to compensate her for this career sacrifice.
- Non-Compensatory – To apply for “needs-based” support, the spouse must show that they are struggling financially, and that this struggle is because of the marriage’s breakdown. For example, if the husband is the breadwinner in the relationship, and the wife was a stay-at-home mother with no job experience, she may receive support until she can support herself.
- Contractual – Sometimes Prenuptial Agreements will include clauses stating that one spouse is entitled to spousal support if the marriage breaks down. If this is the case, then entitlement will be a given.
Once entitlement is found, then spouses must consider the “quantum” (amount) and “duration” (length of time) of spousal support. Typically, more spousal support will be awarded in long term marriages, if the spouses are seniors, and if there is a large income difference between the spouses.
Spousal or partner support orders and agreements are eligible to be automatically enforced by the Alberta Maintenance Enforcement Program, provided that a clause specifically allows for this. In this case, MEP will handle all collections actions if the payor refuses to pay.
4. Division of Family Property
Lawyers usually file a ‘Statement of Claim for Division of Family Property’ alongside the claim for divorce. The default rule in Alberta is that all family property is divided equally (split 50:50). Under the Family Property Act, certain property may be exempt from this division, so long as it falls into one of the following categories:
- Gifts received from third parties.
- Property owned before the marriage.
- Certain awards or settlements for damages in tort law in favor of one spouse.
- Insurance proceeds unrelated to property, unless they compensate the loss of both spouses.
Your mediator will also help you to consider any prior agreements between the spouses when dividing property—in particular Prenuptial Agreements.
Contact a Divorce Mediator Today
Morrison LLP’s mediators are Practicing Mediators with the Alberta Family Mediation Society. Please get in touch at 587-758-1099 to speak with a Practicing Mediator, and find out how we can help you work through your divorce or family law issue.
Our Practicing Mediators are proud to serve much of northern Alberta, including the following communities:
- Edmonton & Area – Sherwood Park, Beaumont, Leduc, Fort Saskatchewan, St. Albert, Spruce Grove, Stony Plain.
- North – Athabasca, Morinville, Westlock, Gibbons, Barrhead, Redwater, Peace River, High Level, Fort McMurray.
- West – Drayton Valley, Edson, Hinton, Whitecourt, Devon.
- South – Camrose, Wetaskiwin, Millet, Calmar.
- East – Vegreville, St. Paul, Cold Lake, Bonnyville, Vermillion, Wainwright, Tofield.