Litigation

Litigation | MacDonald & Partners LLP

Divorce Litigation

In the last few decades, alternative dispute resolution (ADR), which includes collaborative law, mediation and arbitration, has been touted as a much better option than the court system when it comes to resolving legal problems, especially in family law. It is said to be faster, cheaper and more flexible.


However, ADR is not appropriate for everyone. At MacDonald & Partners LLP, we believe in finding the best solution for each client, regardless of what's currently in fashion in legal practice.



We also believe that court can be made to work for you.

Resolving Outstanding Issues & Moving On

 

Our Toronto divorce litigation lawyers will carefully examine your unique situation and help you decide the best option to get you and your family the results you need.


A variety of considerations may make litigation a better option for your separation or divorce:


  • TRUST: At heart, the ADR process requires cooperation and only works when both sides are honest and forthright. If your relationship has been characterized by lack of trust, especially at the end, it may be impossible to set that aside and make ADR work for you.

  • FINANCIAL MATTERS: Full disclosure of financial matters is required in ADR. However, without the trappings of the formal court system, some people believe that ADR is not as "serious" and may be tempted to treat the process with less respect than it deserves and not disclose everything.

  • ABUSE OR MANIPULATION: There may be a power imbalance between the partners. The court system may provide a much better buffer between them and protect the more vulnerable partner.

  • UNSOLVABLE PROBLEMS: Some issues simply cannot be solved through cooperation, such as custody disputes involving relocation of a parent with the children.

  • TRANSPARENCY: Many ADR processes are by necessity private. You may prefer the security of knowing that any decision made in your case will be publicized and subject to public oversight.

  • COST: On occasion, it may be cheaper to go through the court system, especially if your case requires extensive participation by a mediator or mediator/arbitrator as well as a number of other professionals.

Frequently Asked Questions (FAQs):

  • My spouse and I are about to separate and I would like to get some sense of what legal issues are involved.

    Generally, the issues relate to the parenting of children, child support, spousal support, property division, and their various sub-issues. In most cases where the separation is permanent, a further issue is divorce.

  • My spouse and I see things about our separation in the same way, can both of us use the same lawyer?

    No. Each of you needs the services of an independent lawyer. The resolution of most issues is an option chosen from a range of options. The option that fits in any particular case can best be found by the client discussing his or her needs and concerns with the client’s own lawyer, followed by discussion between the two client/lawyer teams either with all four at the table, or by the lawyers between themselves as the clients’ representatives. Each client having his or her own lawyer ensures that the choices can be discussed, advice taken, and decisions made in private free from any influence of the other client. This right of private discussion and the legal advice involved is so highly valued in the law that any agreement reached without the parties having independent legal advice runs the risk of being unenforceable.

  • If we don't need temporary orders and can resolve all issues by agreement, do we need the court at any stage in the matter?

    You don’t need the court except to process a divorce after all other issues arising out of the marriage and separation are settled by agreement. The usual practice is to see the progress to divorce as a two-stage matter with the divorce in the second stage. The first stage is the negotiation of a separation agreement that takes care of all the other issues.

  • Why do we need a "separation" agreement, then, especially if we know that there will be a divorce?

    If you settle all matters arising out of the marriage and separation without going to court, the settlement should be recorded in a separation agreement even though a divorce is contemplated. The agreement must be in the form of a separation agreement to comply with the definition of a “domestic contract,” which has special properties in family law, and to meet the requirements for certain tax advantages that are available. Notwithstanding that it is a separation agreement, when properly drawn it is made to govern the rights and obligations of the parties with respect to each other on separation, divorce and death.

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