Do I Have to Go to Court If I’m Getting Divorced?

Divorce can be a challenging experience, often involving complicated emotions. We often have

clients who fear or avoid the process due to understandable concerns about what the legal

process entails, especially when it comes to the involvement of the court.

It’s important to understand how divorce works in order to understand how the process can

unfold. In Canada, divorce is based on a no-fault principle. This means that you do not need to

prove any wrongdoing or fault on the part of your spouse to obtain a divorce. The central issue is

the breakdown of the marriage, which can be demonstrated through separation or living apart for

at least one year.

If you are concerned about the prospect of going to court or have been advised about the expenses and extended timelines involved in court proceedings, be reassured that there are different avenues we can explore. The encouraging news is that in Ontario, not all divorces entail attending court hearings. For example, if you and your spouse can come to a mutual agreement regarding aspects such as child custody, support, and the division of property, this is referred to as an uncontested divorce. As both parties can negotiate the terms directly or with legal assistance, there is no need for court involvement in such a straightforward divorce.

However, if there are terms that require further negotiating, there are alternative dispute resolution methods that you and your spouse can explore before choosing to take your matter to court to come to an agreement. Alternative dispute resolution methods are a common way parties proceed to reach mutually satisfactory agreements without needing court involvement.

What Types of Alternative Dispute Resolution Methods Exist?

1. Collaborative Process

Collaborative law is an increasingly popular approach to divorce in Ontario. It involves both

parties and their lawyers working cooperatively to reach a mutually beneficial settlement. This

process aims to avoid litigation, as both parties will sign an agreement before the process stating

their willingness to be open and negotiate in good faith. This process can significantly reduce the

need for court appearances, fostering a more respectful and less adversarial environment.

2. Mediation

Mediation is a voluntary process where an impartial third party, such as a mediator, helps the couple achieve a settlement. The mediator oversees the discussions, ensures both parties are given a voice, and helps pinpoint areas of accord. Mediation offers a useful option for resolving disagreements without the need for court involvement. If the mediation process is successful and a resolution is reached, the couple can submit the mediated agreement to the court for review and approval.

3. Arbitration

In some cases, couples may choose to resolve their divorce through arbitration. This involves

appointing an arbitrator who acts as a private judge and makes binding decisions based on the

evidence presented. Arbitration provides a more formal process than mediation but still avoids

the courtroom. It can be a suitable alternative for couples who prefer a private and expedited

resolution.

Unfortunately, alternative dispute resolution methods may not be appropriate for all cases.

When Court Intervention Is Necessary

Court intervention may become necessary in divorce cases if disputes persist or one of the parties is uncooperative. In emotionally charged situations, it's common for parties to be unable to negotiate mutually. In such cases, the court can step in to make decisions that may include child custody, support, and property division.

It is essential to consult with a family lawyer to understand the specific circumstances of your case and explore the best approach to ensure a fair and equitable divorce settlement.

Our team at INB Family Law has the knowledge and experience necessary to help you navigate issues related to divorce. Please reach out to us at info@inbfamilylaw.com or 905-215-1905 to book your consultation.