Following is our library of Frequently Asked Questions. If you have any questions or would like to further discuss any matters related to the FAQs, please connect with us directly.


 

  1. Get good legal advice as early as possible. How you approach dealing with your spouse after separation can have a significant impact on how your matters are resolved. It can be difficult to move from a war to a constructive, problem-solving method. Speaking to a good family law lawyer can save you a great deal of stress and money later. Understanding your legal rights and obligations, developing an effective and productive strategy for resolution and learning some practical techniques for dealing with your ex can be invaluable on both personal and financial levels.
  2. Do not make promises (or threats) too soon. Avoid taking specific positions without knowing your legal rights and obligations. Instead, commit to working together toward a settlement that works for your family. Acknowledge that while you may need some help getting to a mutually agreeable resolution, you want to work toward that goal.
  3. Separate the legal from the non-legal. Any separation involves emotional and relationship issues as well as legal issues. While all issues are important, the legal system is often not the place for the emotional and relationship issues to be resolved. People that are able to separate the legal issues from the non legal issues are often the people that are able to resolve their legal dispute quickly and constructively. Make an investment in yourself and attend counselling, read some books on how to get through a divorce or take a course such as those offered by Howard and Kerry Parsons. (For more information see www.movingonafterdivorce.com.)
  4. Do not panic. People make the best decisions when they are able to use rational, left brain thinking. Try to relax and avoid making decisions when you are angry, afraid or upset. Take the time and space you need (and get the good legal advice you need) to be able to make a good decision.
  5. Choose to do it right. Learn about the dispute resolution options that are available and choose a process that you believe will allow you to achieve your goals.
  6. Give and seek early commitments on basic things from your spouse, including:
    1. No unilateral actions; we will not change what we are doing with children, money, etc. until we both agree. We do not want either of us to have to panic or react to the other’s unilateral action. That makes this too hard;
    2. Respect each other’s need for time and space to deal with their own emotions and healing. If one of us does not want to talk about something we will respect that and leave the discussions for another time;
    3. Ensure that we each make the necessary family resources available to each of us in order to meet the needs of ourselves, the other and the children;
    4. Attack problems; not each other. If one of us is unable to speak in a calm reasoned manner to the other we will withdraw from the conversation until we are both able to deal with it calmly;
    5. Agree to insulate our children from our disputes;
    6. Make decisions about the children based on what is in their best interests and not based on the desires or wishes of either parent and try to be honest about separating the two;
    7. Respect the other telling us they believe it is time for us to withdraw;
    8. Recognize and operate on the basis this is not a war to be won but a restructuring of our relationship, a restructuring of our parenting and a restructuring of our finances;
    9. Make the choices that work the best for each of us and for everyone in the family at the same time;
    10. Make wise choices – not just react and do or say the first instinctive thing. Choose with our heads not with our emotions;
    11. Remember that lawyers are not therapists, psychologists or marriage counsellors. We recognize that our non-legal issues have to be resolved independent of the legal system;
    12. Recognize that we are responsible for our own healing and cannot expect the former spouse to help us;
    13. Recognize that to heal effectively we have to give ourselves permission to heal. Freedom to heal comes from forgiving (forgiving does not mean forgetting) the other for any perceived wrong. We are not giving that gift to the other but rather we are giving it to ourselves;
    14. Remember always that the way our marriage ended is not the story of our whole marriage;
    15. Honour each other as the parents of our children rather than vilify each other as our “Ex” because our children deserve that even if neither of us do; and
    16. Recognize we cannot change how we feel but we can change our actions and reactions going forward. Use that stress energy in positive ways; find something active to do so that it burns off instead of burning you up. Changing what you do will change how you feel.
  7. Decide parenting on a child centered perspective and not based on what works for mom or for dad. Be honest about it. Try hard to be objective.
  8. Recognize that your children are from both of you and need you both. Most important for children is a relationship with both parents, peace and a home. Get advice early from a parenting expert such as a child psychologist if there is any disagreement or disputes. Parenting is often about sacrifice. To do the right thing for the children often means sacrificing one’s own needs, wants and interests. As parents, we are role models. Teach your children good conflict management skills through your actions.
  9. Do not rely on advice from your friends, family and acquaintances. Separations are all uniquely different and those differences can be critically important in determining the right answer for you.
  10. Do it smart up front. Pick a process for resolution with your eyes open as to all the process options and the merits of each of them. This is part of getting good legal advice. Too often good mediators and good lawyers hear “I wish I had come here first”.

The cost of your divorce is impossible to estimate. Costs vary greatly depending on:

  • The divorce lawyers that are retained
  • The resolution process selected
  • The specific matters in dispute
  • The positions, actions and decisions made by you
  • The positions, actions and decisions made by your spouse

Legal fees are based on the amount of time that is spent on your file. A divorce can cost anywhere from approximately $1,500 to over $150,000 or more. At Jones Divorce Law LLP we are committed to helping you manage your legal fees with:

  • Regular interval billing with additional accounts rendered in the event of more significant steps being taken on your file * flat rate legal fees for certain services.
  • Divorce lawyers with a range of experience and hourly rates so that you can elect to retain a lawyer that best suits your needs and budget. If you elect to retain a junior lawyer you still have the backing of senior counsel who can be consulted as required.
  • A legal team approach that allows you to work with a senior and junior lawyer team – the senior divorce lawyer manages the strategic, complex and challenging portions of the file and the junior lawyer runs the daily routine matters.

There are a number of ways we can assist you in resolving your dispute, including:

  1. Negotiation: Essentially this is the process of exchanging settlement offer(s). The negotiation process can be Informal discussions directly between the parties or more formal letters between divorce lawyers. In the event a negotiation is successful, parties still need to enter into a legal contract before the deal will be final and binding. In the event negotiation does not result in an agreement, either party may pursue other options, including litigation or another form of alternative dispute resolution.
  2. Mediation: Mediation is a way to resolve a dispute that involves the assistance of a specially trained neutral third party. The independent party assists the parties through an interest-based process, manages effective communication and helps the parties reach a mutually agreeable resolution. In the event mediation is successful parties enter into a legal contract outlining the terms of their settlement. If mediation does not result in an agreement, either party is free to pursue other action, including litigation or another form of alternative dispute resolution. Mediation can either be lawyer assisted or attended only by the parties to the dispute.
    • What Are The Advantages Of Mediation? There are many advantages to pursuing a resolution through mediation, some of which are as follows:
      • Efficiency – Mediation can be commenced within a relatively short period of time after the development of a dispute. Resolution can be achieved in between one and five meetings or sessions, depending on the number and complexity of the issues.
      • Cost – Mediation can be very cost effective, in comparison to lengthy litigation or arbitration proceedings.
      • Privacy – The mediation process is confidential and held in private thereby avoiding exposure of the conflict, and any related information through the formalized filings that are required in the public court system.
      • Informality – The setting for mediation is relaxed and informal in comparison to litigation proceedings. The relaxed and informal setting is meant to foster open communication and allow parties to focus on non-confrontational problem solving.
      • Control of the Result – In mediation there is no final resolution until both parties agree to an outcome. As such, each party has control over the outcome and no third party justice or arbitrator can impose a resolution on you in the mediation process.
      • Creativity of the Result – In litigation or arbitration, the Justice or Arbitrator is required to apply the law and will impose a resolution to a dispute in accordance with the law. Parties in a mediation have the opportunity to create a resolution that does not fit within the confines of the law, thereby opening up potential solutions that would not be possible in a litigation model.
      • Compliance with Requirement to Attend an ADR – all litigants are required by the Alberta Rules of Court to attempt settlement through some form of formal alternate dispute resolution prior to scheduling a trial. A Mediation session satisfies this requirement.

      What Are the Disadvantages of Mediation? Although mediation has its advantages, there are also limitations associated with mediation, including the following:

      • Voluntary – Mediation is a process that requires both parties be committed to using mediation to resolve the dispute that exists. If one party refuses to take part, it is not possible to continue with mediation.
      • Enforcement – Unlike Court Orders and Arbitration Awards, mediated settlements are not automatically enforceable or legally binding. Upon reaching a solution the parties must convert their terms of settlement into a mechanism which can be enforced, such as a Contract or Court Order.
      • Control of the Result – while this is an advantage of mediation, as discussed above, it can also be a disadvantage. Parties can proceed through the mediation process and never achieve a mutually agreeable resolution. That means that the parties must then commence resolution through other means, such as litigation or arbitration, and the cost and time devoted to the mediation sessions would be wasted.
  3. Mediation/Arbitration: Mediation/Arbitration is a process of dispute resolution in which parties to a conflict agree to refer their matter to a trained, impartial, neutral third party. The parties first attempt to resolve their dispute in an amicable manner. In the event they are unable to reach mutually agreeable resolution with the assistance of the neutral third party then there is a hearing conducted and a binding decision is rendered
  4. Arbitration: Arbitration is a binding process in which disputing parties present their case to an independent individual (the “Arbitrator”) who renders a decision on the matters in issue based on the evidence presented. Any dispute, including parenting, can be resolved through arbitration
  5. Settlement Meeting / Four Way Settlement Meeting: This is a meeting that is attended by both parties and their legal counsel, the purpose of which is to discuss issues and reach a mutually agreeable resolution on any given matter or, ideally, on all matters that are outstanding
  6. Collaborative Law: Collaborative law is a process of dispute resolution in which parties to a conflict each retain a trained collaborative law lawyer and sign an agreement committing them to work openly, honestly and cooperatively and to not use the traditional litigation process involving the courts or threaten to do so. Collaborative matters progress through informal conferences during which information is shared freely and issues are mediated or negotiated constructively.
  7. Parenting Coordination: Parenting coordination is a way to resolve child related disputes. A Parenting Coordinator is a mental health professional or a lawyer with specialized training in mediation, parenting coordination, and child development. The parent coordinator facilitates communication and cooperation between parents for the purpose of effectively co-parenting their children. Parenting coordination is intended to provide a fast and cost effective resolution for ongoing parenting disputes where the fundamental agreement as to how major decisions should be reached and whether there is to be roughly equal parenting time with the children has been determined.
  8. Judicial Dispute Resolution (“JDR”): The purpose of a JDR is to reach a settlement on all issues, or to resolve as many issues as possible, with the assistance of a Justice of the Court of Queen’s Bench. JDRs are conducted informally in a conference room setting and are fairly similar to mediation. JDRs can be non-binding (similar to mediation) or binding (similar to arbitration).
  9. Litigation: Litigation involves parties taking their dispute to court and have a justice or judge impose a binding decision upon them. Litigation is an adversarial process that is time consuming and expensive. Any matter can be resolved through litigation. Although many interim applications and decisions may occur prior to trial, a resolution through litigation ultimately culminates in the trial of an action, which typically involves the parties to the dispute testifying in open court. Interim decisions can be made in morning chambers or in more lengthy afternoon hearings called Domestic Specials. In the event parties refuse to engage in any form of dispute resolution other than litigation then litigation becomes the only option, as other dispute resolution options are only available in the event both parties agree.

Divorce Act

Grounds:

  • Mental, physical cruelty
  • Adultery
  • 1 year separation

Parenting:

  • Custody (joint or sole)
  • Regular parenting schedule
  • Parenting schedule for holidays and special occasions
  • Communication

Child Support Guidelines:

  • Fixed monthly payments
  • Extra expenses

Spousal Support:

  • Entitlement, based on need or compensation or both
  • Once entitlement is established, how much is paid for how long
  • Periodic (taxable)
  • Lump sum (non-taxable)
  • Mixed (a combination of periodic and lump sum)

Matrimonial Property Act

Exclusive Possession: of matrimonial home

Equal Division: property acquired after marriage, which is presumed to be split 50/50

Exemptions (which are not subject to division):

  • Gifts from third parties
  • Assets owned prior to marriage
  • Inheritance
  • Some lawsuit or insurance settlements
  • Exemptions must be traceable to a currently existing asset

Increase in Value of Exemptions: divided as is “just and equitable”

  1. Attack the problem and concerns at hand, not the other party.
    • Attacks of the other party do not lead to agreement; they lead to defensiveness, delay and counterattacks.
    • Remember, you are actually a team. You are trying to reach an agreement, which can only be done together. Your spouse must say yes before you can get there. As such, you are really working together to solve the problems/issues, you are not battling each other, you are both battling the problems.
  2. Focus on needs, interests and concerns instead of the outcome you wish to achieve.
    • Being positional leads the other party to become defensive, it limits creative thinking and flexibility, all of which are impediments to settlement.
  3. Do not engage in destructive behaviour.
    • Remain focused and effective in spite of whatever your spouse says or does.
    • Respond, don’t react. Your spouse may well say or do something to “push your buttons” but you should remain calm, review your options and then decide what to say or do.
    • Your spouse being difficult only makes it more important for you to be effective in order to achieve the goal of a mutually agreeable resolution notwithstanding their weakness. Sometimes we listen to lies, irrelevancies and abuse just so the other side can get it out of their system and we can move on to the real issues.
    • Do not interrupt or talk over your spouse. Use non-inflammatory, non-sarcastic words.
  4. Work toward what you believe will be a constructive and fair agreement for both you and your family.
    • Listen carefully and try to understand where they other party is coming from. The better you understand the other party’s view, the more easily you can address their needs and reach an agreement. Remember understanding what your spouse is saying does not mean that you agree with their view.
    • Try to follow up a concern (either your own concern or a concern of your spouse’s) with a constructive suggestion as to how it might be resolved.
    • You will likely feel that all the pressure is on you – to provide information, to fund two homes, to take care of everyone. Your spouse is likely afraid of the uncertainty of the future as well – financially, parentally, romantically.
  5. Commit to the fullest development of choices and alternatives.
    • Respond to proposals by asking questions about the proposal, saying “Yes”, “No” or “I’ll think about it”. Avoid insulting the idea.
    • Try to come up with at least three different options for the resolution of a particular issue that you believe could work for both of you.
  6. Be effective.
    • Speak for yourself only. Make “I” statements.
    • Focus on the future. You and your spouse could likely argue about the past for hours without making any progress. You do not need to reach an agreement about the past, only what will happen from this point forward.
    • Before you say or do anything, ask yourself if it will be effective in advancing toward your goal of settling matters. Remember, in order to reach a settlement, the deal must be acceptable to your spouse as well as to you.
    • Recognize the futility of arguing.
  7. Recognize your own process needs and respect those process needs of the other.
    • It can be very frustrating to need to go through a whole process in order to get to the same result you would have gotten to if your spouse had just said yes in the first place. However, your spouse may not feel able to do just say yes and may need to have process needs met before being in a position to say yes to an agreement. It may be that your spouse needs to see financial statements, consult an accountant, appraiser, etc. in order to find something acceptable.
    • “Math” people and “feelings” people tend to have different approaches. Math people tend to arrive with financial records, calculations and charts and they often believe they have the “right” answer already figured out so discussion is unnecessary. Feelings people are often not as clear about what they want. They may want to be compensated for being wronged or to give them security in the future. Math people are often shocked at where a feelings person is coming from and feelings people often feel shut out of the process and disrespected. Both parties tend to feel ignored, disrespected and frustrated. Math people need to be patient and respect the feelings person’s need for their point of view to be heard. Feelings people need to acknowledge the work that the math person has done and be realistic about the potential outcomes of their case.
    • Men and women tend to have different communication styles. Often women want to be heard and understood, without having the other solve the problem. Men often tend to be problem solvers and readily suggest answers. Women need to recognize that it may be the man’s natural inclination to try to solve the problem and suggest answers and not jump to the conclusion that he is a control freak. The man’s need may be to be recognized for helpful suggestions and not have them dismissed immediately. Men need to just listen, non-judgmentally, and communicate that the woman has been heard and understood.
  8. Be prepared.
    • Take time before the meeting to consider what is most important to you and to anticipate what is most important to the other party.
    • Exchange financial documentation in advance whenever possible. Alternatively, bring it to the meeting.
    • Obtain external valuations and exchange those in advance whenever possible. Alternatively, bring them to the meeting. These may include real property appraisals or real estate assessments, Blue Book / Black Book values of vehicles, vehicle appraisals, pension division upon marriage breakdown letter from your pension administrator, etc..
    • Try to come with at least three options for the resolution of each particular issue – options that you believe may meet the needs of both you and your spouse. These can include options for a way in which to achieve a resolution such as jointly retaining an appraiser, tax expert or business valuator, consulting a financial advisor, a formula for dealing with income, etc..
  9. Be patient.
    • Some delays may occur even when everyone is acting in good faith.
    • Your spouse may not process information or make decisions as quickly as you do but an agreeable resolution can still be achieved.
    • Taking the time to gather all the facts, explore each other’s interests and generate options will lead to a settlement that is acceptable to both parties and tailored to your particular needs.
  10. Remember that you have control.
    • You can just say “No” to anything that is not acceptable to you.
    • Empower yourself by taking responsibility for your feelings, interests and choices, rather than holding the other person responsible. Although a settlement may feel very far away right now, statistically, very few cases actually proceed all the way through trial. Settlements are possible. Mutually acceptable resolutions are achieved every day.

Truly, settlement just makes sense. It is an opportunity to maintain control of your own destiny and design your own resolution instead of having one imposed upon you. It is also an opportunity to end the conflict reasonably quickly while also minimizing the negative financial impact of proceeding with the dispute and paying the additional costs of continuing the fight.

Questions About Prenups

In a word, YES! Here are the top 10 reasons you need a prenup / cohabitation agreement:

  • Customized Division: Prenuptial and cohabitation agreements are customized to achieve specific goals. A prenuptial or cohabitation agreement affords parties the ability to divide their property exactly how they wish, regardless of how the law would deal with the division of assets and liabilities upon a relationship breakdown.
  • Certainty: There are areas of great uncertainty in the law. A prenuptial agreement protects couples from the uncertainty of how their property would be divided in court by dictating exactly how property will be owned upon separation.
  • Save Money: A a prenuptial or cohabitation agreement saves money since there is no need to litigate or even negotiate issues of division of property because those matters were pre-determined in the prenuptial or cohabitation agreement.
  • Reduce Stress: Separation and divorce are among the most stressful events a person can experience. The certainty of a prenuptial or cohabitation agreement greatly reduces the anxiety associated with a break-up.
  • Protect Inheritance & Other Exemptions: A prenuptial agreement allows for the complete protection of inheritances, family businesses and other exemptions, unlike the Matrimonial Property Act that affords only partial protection of certain exemptions.
  • Protect Income: A spouse that has an income that is far higher than another’s can protect their higher income by having a prenuptial or cohabitation agreement that deals with the issue of spousal support. A spouse with the weaker income can also be protected through an agreement by specifying what he or she will receive upon a breakdown of the relationship.\
  • Resolve Debt Issues: The Matrimonial Property Act does not specifically deal with debt. As such, if one party has a high debt load it is wise to resolve who will be responsible for what liabilities in the event of a relationship breakdown.
  • Second Relationships: You can use a prenuptial or cohabitation agreement to protect assets intended for children from a prior relationship.
  • Tax Planning: Some people use prenuptial, cohabitation or post marriage agreements as a tax planning tool. In the event of a breakdown in a relationship where the parties do not have a prenuptial or cohabitation agreement in place, the court will simply require the division of assets without concern about how to best effect a division from a tax planning perspective. A prenuptial, cohabitation or post marriage agreement allows parties to specify exactly how they wish to divide property in the event of a breakdown in their relationship. This allows them to take advantage of optimal division techniques that minimize the tax implications of the division of assets.
  • Mutual Expectations: Since a domestic contract involves a couple exploring their expectations and priorities up front, a prenuptial or cohabitation agreement allows a couple to get on the same page about financial rights and expectations as they enter into a relationship. It affords couples the opportunity to develop mutual perspectives by shaping and clearly defining the legal contract that they are entering into by marrying or cohabiting.

  1. Paradigm Shift People hope for the best and plan for the worst all the time. We all execute Wills, Powers of Attorney and Enduring Powers of Attorney, planning for death and incapacity. Why not plan for the over 50% likelihood that we may not have a single partner for our lifetimes. A prenuptial or cohabitation agreement is just another essential legal document regarding something we would rather not acknowledge. Marriage is a legal contract and, although less formal, cohabitation also affords the parties significant legal rights. Like it or not, you are entering into a business relationship when you marry or cohabit. No prudent businessperson would enter into a business transaction where they did not have any advanced knowledge, certainty or control over its terms. A prenuptial or cohabitation agreement allows parties to specify the terms of their partnership. A domestic contract allows parties to explore their expectations and discuss what is important to them up front. They have the opportunity to shape the contract that they are entering into, with or without knowledge of or consent to the terms.
  2. Start the Conversation Early It is important to take the stress and emotional turmoil out of the prenuptial or cohabitation agreement. Bringing up the topic early avoids the shock, emotional pressure and time compression often associated with these documents. This is especially important because these pressures could be used as arguments to have a prenuptial or cohabitation agreement set aside.
  3. Develop the Agreement Together Working out the terms of a prenuptial or cohabitation agreement jointly can ensure that one partner does not fear for their financial security or feel emotionally threatened. An amicable approach allows both parties to participate in the process and buy-in to the concept of a prenuptial or cohabitation agreement. When entering into a domestic contract parties are building an agreement, not winning an argument. Mediation or collaborative law are good forums for constructively developing a prenuptial or cohabitation agreement jointly.
  4. Mutual Protection A prenuptial or cohabitation agreement benefits both parties by providing certainty and circumventing exorbitant legal fees and extreme emotional strain often associated with separation. These contracts are generally not used to lock a spouse out of all financial gains afforded to the other party. It truly is an opportunity to protect both parties, to discuss and understand what each party expects from the relationship.
  5. Hire the Right Lawyers All lawyers are not created equal. Some lawyers are more adversarial than others. Some are more aggressive and litigious than others. Be mindful of a lawyer’s reputation and the reason you are retaining counsel. Some lawyers are also not particularly experienced at drafting prenuptial and cohabitation agreements. They are difficult agreements to put together and you should be confident that the lawyer you retain has specific prenuptial agreement drafting experience.
  6. Allow for Change Allow the document to be changed in the future by mutual agreement. Prenuptial and cohabitation agreements anticipate events that have not yet occurred. If the relationship does not unfold as anticipated, the agreement may not be appropriate in the actual circumstances that transpire and may need to be revised. Parties may end up having unplanned children, a spouse may become very involved in a business, parties may develop a company together or a spouse may end up staying out of the workforce for an extended period. An agreement should be sensitive to these possibilities but may also need to be revised in the future in the event of unanticipated circumstances.

Questions About Mediation

Mediation is a process of dispute resolution in which parties to a conflict agree to work with an impartial and neutral third party (the mediator). The neutral party assists the clients in reaching a mutually agreeable resolution by coaching parties on the essential tools for a successful mediation, guiding them through the mediation process, providing general information, and facilitating a meaningful discussion and analysis of the issues.

  1. Customized Solution – The ability to be creative and work together to come up with a mutually agreeable solution is one of the most significant advantages of mediation. Parties are able to think outside the box and not confined to solutions which would otherwise be imposed by a judge.
  2. Control – In a mediation the decision making rests with the parties. The parties retain the final say over the terms of their agreement, so there is no agreement without each party saying “yes” to its terms.
  3. Expedient – A solution achieved through mediation is efficient. Generally, a mediated settlement is reached within seven settlement meetings, or between three weeks and three months, as opposed to the months and even years that traditional litigation takes to complete. Achieving a solution in a timely manner reduces conflict, stress, anxiety and expenses.
  4. Affordable
    • Mediation is far less time consuming than litigation. Traditional court channels typically take months and even years to navigate, whereas mediation is generally completed within seven sessions. When legal fees are based on the amount of time spent on a file, it is not terribly surprising that litigation becomes incredibly expensive.
    • Mediation allows parties the opportunity to employ one professional who is dedicated to helping the parties reach a harmonious resolution instead of each party paying for their own professionals.
    • Lawyers charge for the back and forth correspondence between them, for financial disclosure to be exchanged, numerous pleadings to be prepared and filed, and court appearances where they often spend time waiting in court before a matter is heard, in which case they are being paid to simply sit there Side stepping traditional litigation and instead using mediation contributes to reduced expenses because lawyers are largely removed from the equation.
    • Parties are much more likely to abide by the terms of a resolution they have helped to create than they are to a resolution imposed on them by a judge. The result is that expenses are reduced because lawyers do not typically need to be employed to enforce the terms of mediated solutions, despite mediated agreements being fully enforceable by the court.
  5. Personal Attention – Mediation sessions allow parties to speak and be heard. Parties work with the mediator to generate and evaluate resolution options, seeking to achieve an outcome that meets both parties’ needs and goals.
  6. Confidentiality – Mediation sessions are private, as are the communications, documentation and notes made in the course of mediation. Litigation involves public court appearances and documentation and evidence are a matter of public record, accessible by anyone.
  7. Flexibility – Mediators can agree to go as quickly or as slowly as both parties wish, depending on your needs. Mediators will work around your work and personal schedules. Litigation and court appearances are not nearly as flexible.
  8. Promotes Amicability – Mediation involves parties gaining an increased understanding of each other, learning and practicing skills to improve communication and diminish conflict. This promotes the preservation of the relationship, which can be invaluable to parties who will be co-parenting for years to come. In stark contrast, litigation is, by its very nature, adversarial. Parties often resort to giving evidence outlining the opposing parties’ negative characteristics and damaging history in order to win. The general by-product of traditional litigation is to create an environment which divides and polarizes parties and which fosters continued conflict.
  9. Protects Children from Conflict – One of the greatest indicators of how well children will be able to cope with separation is the extent to which they are exposed to conflict between their parents. The increased animosity resulting from traditional litigation is difficult to hide from children and therefore increases the risk of long lasting harm to the children. In contrast, by promoting effective communication, cooperation and understanding through mediation, parties are better able to reduce the conflict between them and learn to effectively co-parent into the future for the benefit of their children.
  10. Experience – With Alternative Divorce Solutions you can be confident that you are in good hands. The professional who you will be working with has a law degree, additional training in conflict resolution, mediation and/or arbitration and has many years of experience practicing law exclusively in the areas of family and divorce law. As a result, clients can feel confident in the information being provided, allowing them to make informed, well educated decisions and achieve the best solution for themselves and their family.
  11. Consistency – In mediation, parties use the same professional through the entire process. As a result, following the initial sessions, the mediator is personally familiar with the parties, their family circumstances, the details of their property, personal dynamics, specific challenges, etc.. During traditional litigation, parties generally attend court multiple times and before a variety of Justices, each of whom have varying perspectives and approaches. Many interim applications involve Justices making decisions based on an incomplete knowledge and understanding of the family circumstances due to the limited time litigants are permitted to present their case. The result is that court decisions may lack consistency.
  12. Compliance – Mediated solutions result in high compliance by the parties because the resolution was arrived at jointly and is mutually agreeable. Quite simply, parties are more likely to abide by a harmonious agreement than a decision that is imposed upon them in a litigation setting. Similarly, parties are less likely to seek to change a settlement they personally developed. Additionally, in the event disputes arise in the future, parties are more likely to resolve matters by agreement and can return to their mediator for future assistance if required.
  13. Support – Parties are supported and encouraged to “think outside the box” to find a unique and customized solution which addresses their interests, meets their needs and accomplishes their goals. Through the support and assistance of the mediator, parties can gain valuable communication skills, an appreciation of where the other party is coming from and a better understanding of their personal and family dynamics. These skills and insights assist parties to maintain and improve their relationship into the future.
  14. Mutual – A mediated resolution is not achieved until both parties are able to say “yes” to a resolution. Neither party, nor the mediator, can impose a decision on either party. The result is mutually agreeable solution which has the added benefit of preserving a working relationship between the parties.

Mediation is a process that promotes effective communication, creative solutions and the resolution of conflict in a mutually agreeable manner. The way that issues get resolved can have a tremendous effect on a family’s adjustment to separation.

All disputes can be resolved through mediation. Whether it is decision making, parenting time, the division of assets and debts or how income should be shared or any other number of issues mediation can lead to the best possible outcome.

Mediation is geared toward couples that are committed to working toward a solution to their dispute. Parties do not have to feel friendly to one another. In fact, it is very common for there to be feelings of anger, mistrust and trepidation about the other party.

Mediation requires both parties to be involved in the process. A mediated resolution can only be achieved through the participation of both parties to a dispute so both people need to be willing to work with the mediator to achieve a solution.

In order for mediation to be effective both parties need to be able to express themselves. As a result, mediation is not always the best options for situations where there is a history of domestic violence, mental illness or severe drug or alcohol abuse. However, it is sometimes possible to have a successful mediation even with those challenges because parties can meet with the meditator separately or they can have their lawyers attend mediation with them.

Since mediation is a cooperative process where everybody is attacking the problem and not each other, it builds communication skills that can be used in future planning and parenting. Mediation also promotes understanding which can lead to the foundation of a more cooperative relationship after divorce.

In situations where there is a history of domestic violence, mental illness or severe drug or alcohol abuse mediation is challenging.  However, it is sometimes possible to have a successful mediation even with these issues because parties can meet with the meditator separately or they can have their lawyers attend mediation with them.  If you wish to attempt mediation but you have one or more of these problems make sure you tell your mediator about the situation up front.  
Mediation does not always result in a settlement of all issues. However, even reaching an agreement on some issues is beneficial since a reduction of the issues can significantly reduce the time and money it takes to resolve the remaining conflicts. Parties that have outstanding issues after mediation may resolve their dispute through another manner, such as arbitration or court. At Jones Divorce Mediation Inc. we believe that it is best for people to achieve a prompt and cost effective resolution to their issues and, therefore, recommend arbitration services for parties that are unable to agree on everything in mediation.
The Parties: As a party to the mediation your role is to be:
  • Open and honest
  • To abide by the ground rules established by the mediator so that you communicate effectively
  • Listen to understand the other party’s point of view (which does not involve agreeing with that perspective
  • Speak up and be an active participant
  • Focus on your interests, needs, wants, concerns and fears instead of any one position on an issue.

The Lawyers (if any): Parties may choose to attend mediation with or without legal counsel. A lawyer’s role in mediation is unique. A lawyer attends mediation in order to :

  • Provide support to his/her client
  • Answer any questions that the client may have throughout the process
  • Provide their opinion on legal matters that arise during the process and provide the client with legal advice as may be required.

Unlike a litigation process, however, a lawyer does not attend mediation to advocate for their client.

The Mediator The mediator’s role is to:

  • Educate the parties about the mediation process
  • Create an atmosphere conducive to open, honest communication
  • Maintain the integrity of the process by carefully monitoring the pace and content of discussions
  • Provide legal information, as required
  • Assist the parties in identifying common concerns, understand each parties interest and needs
  • Aid in the generation of options
  • Assist with the evaluation of chosen options and with the negotiation of a final solution
  • Deal with power imbalances should they arise
  • Draft a mediation report upon a resolution being reached

  • Think about the key issues
  • Reflect on your interests, needs, goals, concerns, fears, and hopes
  • Be open to listen to the other person’s interests, needs, goals and concerns
  • Identify possible solutions
  • Think about alternatives
  • Think about the other party’s perspective, interests and alternatives
  • Be open to trusting the mediation process, even if you do not trust the other party
  • Gather any paperwork or factual information you believe will be relevant to reaching an agreement * Focus on the future and be prepared to let go of the past
  • Allow sufficient time for a solution to be achieved
  • If you feel like terminating mediation, commit to taking a break and giving the mediator five minutes of your time before you actually terminate the process
  • Think positively – a solution is just around the corner!

The mediation will be held in a boardroom at the office of the mediator.
The mediator will not provide either party with legal advice but can provide some legal information. Each party is encouraged to consult legal counsel and receive legal advice at any point prior to or during mediation. In fact, in order to make a mediated agreement binding, a legal contract will need to be drafted and each party will need to sign off on that contract with independent legal counsel. An arbitrator also will not provide legal advice to either party but can provide some legal information. Each party is encouraged to retain legal counsel and obtain legal advice prior to arbitration.
An agreement reached through mediation is not final and binding until the parties execute a legal contract with independent legal counsel. However, in the event the parties reach an agreement in the mediation phase of a mediation/arbitration the mediator/arbitrator can issue a consent arbitration award, which is legally binding. An arbitration award rendered in an arbitration process is legally binding on both parties pursuant to the Arbitration Act.

Questions About Mediation / Arbitration

Mediation / Arbitration is a process of dispute resolution in which parties to a conflict agree to refer their matter to a trained, impartial, neutral third party.  The parties first attempt to resolve their dispute in an amicable manner through mediation.  In the event they are unable to reach a mutually acceptable resolution in mediation, an arbitration hearing is conducted and the parties are bound by the decision of the neutral third party
 The length of mediation / arbitration varies depending on the number and complexity of the issues in dispute as well as the level of animosity between the parties. A mediation typically lasts between one and seven joint sessions. The length of an arbitration also varies based on the same factors but typically an arbitration lasts between one and ten days. An arbitration award (the binding decision rendered by the arbitrator) is rendered within approximately one month of the conclusion of the arbitration hearing. As such, a mediation / arbitration can be concluded anywhere from one week to a few months, a tiny fraction of the duration of a litigated dispute, which generally takes well over a year.

Mediation / Arbitration offers a solution which is really the best of both worlds. While the goal is to reach a harmonious agreement in mediation, should that not be possible, an immediate end to the dispute will be provided through arbitration. As such, mediation / arbitration combines the advantages of both mediation and arbitration. Parties start in mediation, where they have the advantage of reaching a creative, customized solution where they remain in control of the result. However, in the event they are unable to achieve a mutually agreeable resolution on some or all of the issues, they have the advantage of being assured of a timely and cost effective resolution determined by professionals who have the extensive legal training and experience in family and divorce law to resolve their matter appropriately.  Additionally, the entire mediation / arbitration process is confidential, flexible and offers consistency and personal attention.

Mediation / Arbitration is likely the most cost effective option available because the arbitration phase essentially acts as insurance for a timely resolution without the risk of the excessive costs, prolonged conflict and emotional turmoil associated with litigation. 

Yes. During the mediation phase of a mediation / arbitration divorce lawyers can offer support and legal information to clients and can assist with generating and evaluating proposals. During the arbitration phase, divorce lawyers can question witnesses and advocate their client’s case to the arbitrator, just as they would in a court trial in the litigation process.

Yes. Everything that happens in mediation / arbitration is completely private and confidential. All discussions, evidence and notes generated or referenced in the mediation / arbitration process remain entirely confidential and are never disclosed to any third party by the mediator / arbitrator. In contrast, all evidence, affidavits, and documents referenced in court are a matter of public record, accessible by the general public.  The arbitration award is usually turned into a Court Order, which is a public record document but the only time the details of an arbitration becomes public is in the event the arbitration award is appealed.

A mediation / arbitration involves two separate and distinct phases. The first is the mediation phase, which typically involves the following steps:
  1. Parties jointly attend an information session in which the mediation agreement is reviewed and signed and the parties inform the mediator about what issues need to be discussed. Basic financial information (legally known as disclosure) that may be required for a successful mediation is identified, plans and procedure for obtaining that information are established, and parties are provided with valuable relevant legal information, which may be important for them to consider when reaching an agreement.
  2. Parties each separately attend an hour-long mediation coaching session to acquire the essential skills for a successful mediation.
  3. The parties jointly attend one or more settlement meetings in order to:
    • Discuss the matters in issue;
    • Explore each parties’ interests, needs and goals;
    • Make proposals for a harmonious solution;
    • Evaluate resolution options; and
    • Finalize a comprehensive settlement that is acceptable to both parties.

In the event the mediation does not result in a mutually agreeable resolution then the arbitrator will determine any and all outstanding issues through arbitration. The arbitration process involves the following steps:

  1. Initial Arbitration Meeting – There will be an initial arbitration session in order to:
    1. Identify the issues to be resolved;
    2. Determine whether or not there are any emergent matters that require a decision prior to the arbitration hearing;
    3. Determine what steps, if any, are required prior to the arbitration hearing;
    4. Decide how formal the arbitration hearing will be;
    5. Identify the witnesses to provide evidence;
    6. Specify the length of time required to conduct the hearing; and
    7. Set timelines and schedule the next steps and/or schedule the arbitration hearing.
  2. Interim Applications – Any emergent matters are resolved by way of provisional arbitration hearings and temporary arbitration awards are rendered to resolve these issues.
  3. Arbitration Hearing – The arbitration hearing allows parties to present evidence and argument. Many arbitrations only involve the parties themselves presenting evidence but some include third party witnesses, such as experts like business valuators or child psychologists.
  4. Arbitration Award – An arbitration award is the binding decision, which is issued by the arbitrator. The award is rendered within one month of the conclusion of the arbitration hearing.

Parties can tailor the arbitration process to their own needs, to some extent, by mutual agreement. An informal hearing would typically involve the parties presenting their evidence and providing submissions about each matter in issue. A formal hearing process includes opening statements and closing arguments from both parties. A formal hearing could also include a court reporter who creates a written transcript of the sworn evidence provided by the parties and other witnesses instead of the arbitrator keeping the record of proceedings. Within this spectrum, parties can choose the specific level of formality for the process, however, barring agreement the process will be formal.

Questions About Arbitration

Arbitration is a method of private and confidential dispute resolution in which parties agree to be bound by the decision of an independent third party (the arbitrator).  The arbitrator renders a decision on the matters submitted to the arbitrator based on the evidence and argument presented.  The arbitration process can be tailored to meet the needs of both parties, with the timing, format and method of presentation of evidence and argument chosen by the parties.  In the absence of agreement, however, the default is a more formal process controlled by the arbitrator and governed by principles of natural justice, which permit each party to present their evidence and argument to the arbitrator.  The arbitration hearing takes place in a private boardroom.  Parties can either represent themselves or be represented by legal counsel.  Arbitration is akin to a court trial and an arbitrated decision takes the place of a trial judgment.  
  1. Efficient – There are numerous steps that must be taken prior to scheduling a court trial and, therefore, Court of Queen’s Bench trials are typically scheduled well over a year following legal counsel being retained. Arbitration is a more streamlined process that can be scheduled quickly, thereby allowing parties to resolve their dispute in a timely manner.
  2. Affordable – Since arbitration provides a more streamlined process than a court trial and is more conducive to parties acting on their own behalf without lawyers, arbitration tends to be far less expensive than court trials.
  3. Experience – At Alternative Divorce Solutions the arbitrator who decides your matter is an experienced legal professional with additional specialized training in arbitration. Having practiced law exclusively in family and divorce law for many years, our professionals have an in depth knowledge and understanding of the intricacies and nuances of the legal principles that face separating and divorcing parties. Thoroughly considered, well analyzed, and comprehensive arbitration decisions will allow parties to conclude their dispute and move on with their lives with confidence that their matter was given proper legal consideration. In contrast, arbitrators who are not lawyers and have not practiced law in the area have a more superficial comprehension of the issues, which can result in inaccurate applications of the law and incorrect arbitration awards. Further, Justices have a wide range of backgrounds and parties may or may not appear before a Justice who has any experience practicing family and divorce law prior to joining the judiciary.
  4. Consistency – In arbitration, parties use the same professional through the entire process. As a result, the arbitrator becomes familiar with the parties, their family circumstances, the details of their property, personal dynamics, specific challenges, etc.. During traditional litigation, parties generally attend court multiple times and before a variety of Justices, each of who have varying perspectives and approaches. Many interim applications involve Justices making decisions based on an incomplete knowledge and understanding of the family circumstances due to the limited time litigants are permitted to present their case. The result is that court decisions may lack consistency. While arbitration may also involve interim applications, parties always attend with the same professional arbitrator to afford the parties the consistency of a decision-maker with an intimate understanding of their case and particular circumstances.
  5. Simple – The arbitration procedure is less complicated than litigation, which can be extremely challenging for self-represented litigants to navigate. Individuals can easily attend arbitration on their own, but are also free to have legal counsel represent them should they prefer.
  6. Confidential – Arbitration sessions are private, as are the communications, documentation and notes made in the course of arbitration. Litigation involves public court appearances and documentation and evidence all of which is a matter of public record, accessible by anyone.
  7. Flexible – Arbitrators will work with the parties to accommodate work and vacation schedules. Although timelines and decisions can be imposed, they are not as rigid as those imposed by the Alberta Rules of Court. Litigation, court appearances and the Rules of Court are not flexible.
  8. Better Protects Children from Conflict – Traditional litigation is extremely time consuming and trials typically occur well over a year following legal counsel being retained. The prolonged conflict and animosity between parents negatively impacts their children. By providing an efficient resolution to a dispute, children are better protected than they are in a lengthy, ongoing litigated battle.

Arbitration services are offered at a set hourly rate and, therefore, the cost of an arbitrated solution varies depending upon how long an arbitration hearing lasts. Typically, the length of arbitration is between one day and one week. Since it does not take nearly as long to get to arbitration than it takes to get to trial, arbitration tends to be significantly less expensive than litigation. Additionally, parties have the opportunity to control the level of formality of an arbitration hearing, which affords them more control over the cost of arbitration. In litigation, parties have no control over the process or level of formality.
Yes. An arbitration award rendered in an arbitration process is legally binding on both parties pursuant to the Arbitration Act. An arbitration award can be converted into an Order of the Court of Queen’s Bench and enforced in the same manner as a Judgment rendered at trial.
Yes. Arbitration sessions are private, as are the communications, documentation and notes made in the course of arbitration.  Litigation involves public court appearances and documentation and evidence all of which is a matter of public record, accessible by anyone.
The parties in a dispute can customize an arbitration process, although it generally involves the following steps:
  1. Initial Arbitration Meeting – There will be an initial arbitration session in order to:
    1. Identify the issues to be resolved;
    2. Determine whether or not there are any emergent matters that require a decision prior to the arbitration hearing;
    3. Determine what steps, if any, are required prior to the arbitration hearing;
    4. Decide how formal the arbitration hearing will be;
    5. Identify the witnesses to provide evidence;
    6. Specify the length of time required to conduct the hearing; and
    7. Set timelines and schedule the next steps and/or schedule the arbitration hearing.
  2. Interim Applications – any emergent matters are resolved by way of provisional arbitration hearings and temporary arbitration awards are rendered to resolve these issues.
  3. Arbitration Hearing – the arbitration hearing allows parties to present evidence and argument. Many arbitrations only involve the parties themselves presenting evidence but some include third party witnesses, such as experts like business valuators or child psychologists.
  4. Arbitration Award – an arbitration award is the binding decision, which is issued by the arbitrator. The award is rendered within one month of the conclusion of the arbitration hearing.

Parties can tailor the arbitration process to their own needs, to some extent, by mutual agreement. An informal hearing would typically involve the parties presenting their evidence and providing submissions about each matter in issue. A formal hearing process includes opening statements and closing arguments from both parties. A formal hearing could also include a court reporter that creates a written transcript of the sworn evidence provided by the parties and other witnesses instead of the arbitrator keeping the record of proceedings. Within this spectrum, parties can choose the specific level of formality for the process; however, barring agreement the process will be formal. 

Often, only the individuals involved in a dispute attend arbitration.  However, they are free to bring their legal counsel to arbitration sessions with them.  Also, sometimes parties decide to consult a tax expert, financial advisor, business valuator, mental health professional or other expert and the expert may attend a mediation session to provide information and assistance to move the parties toward their agreement.