DIVORCE MEDIATION QUESTIONS | Prepare for Divorce Mediation
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FAQ
Frequently Asked Questions
How do I protect my children in a divorce?
The most common concern for those entering divorce mediation is how to protect the children in a divorce. Divorcing parents are usually very concerned about how the divorce will affect their children and family. A divorce mediator can help make the divorce easier on the entire family. By explaining the differences between sole custody, joint custody and access, a mediator can help the couple co-parent even though they are no longer living in the same house.
What is a parenting plan?
A parenting plan enables divorced parents to co-parent children in a divorce successfully. The parenting plan takes into account the schedules and protocols for children with separated parents. The parenting plan is designed to avoid conflicts and leave little left to chance.
A strong parenting plan is very important to helping the family and children in a divorce. A good divorce mediator will be able to help both parents create a customized parenting plan that works for both of them. This includes questions about scheduling, schooling, extra curricular activities, summer holidays, other holidays such as Christmas, New Year and any other family or religious high holidays.
What is the difference between child custody and access?
Child custody and access can be a major source of frustration and conflict for divorcing parents. Often there is a misunderstanding about what the difference is between child custody and access. Custody is the right to make important decisions about a child’s care and upbringing. Joint custody is the right to make decisions about a child’s education, religion, health care and travel, jointly. Access is the right to spend time with the children and the organization of this time in the best interests of the children.
Property Assets and Liabilities
Why is the Separation Date important in a divorce?
In Ontario divorce law the separation date is the date you have both decided that the marriage is over and you want to get divorced. The importance of the separation date is:
- The total value of all your assets and liabilities are determined from the separation date.
- Separated couples are only entitled to get a divorce 1 year from the date of separation.
What is the Valuation Date?
The valuation date is the date from which a divorcing couples’ net assets are calculated. The more assets a couple may have to divide, the more complex the equal division of these can be. Under Canadian divorce law, the division and/ or equalization can vary from one province or another.
What is the Equalization Amount?
Canadian divorce law generally states the value of any property acquired during a marriage will be equally divided between each divorcing spouse. In order to get an equal accounting, each divorcing spouse will fill out a financial statement listing all assets and liabilities. These amounts are then merged and split 50/50 making the “equalization amount.” Even if one spouse keeps an asset the other spouse might receive an equalization payment in return. This ensures that each person receives the same amount of value once the assets and liabilities have been calculated.
What assets will be split?
In Ontario divorce law all assets and property are to be divided equally. Your savings, RRSP, pensions, and any stocks or bonds will all be included in the asset calculation and will be divided equally.
Any assets or property you had before the marriage will not be included (with the exception of the matrimonial home). Additionally there are certain amounts, which are excluded like inheritances and personal injury amounts. If there is a valid marriage contract or a pre-nuptial agreement this can also determine the final numbers.
Who gets the house?
The person who “gets” the house will be determined in mediation. The value of the matrimonial home will be split equally as both parties have equal rights to it under Ontario divorce law. Unlike other property, most of the time it doesn’t matter when the matrimonial home was purchased or whose name is on the papers for the house, both spouses have equal rights to it.
What is the Matrimonial Home?
The matrimonial home is the home you and your spouse were living in at the time of separation. The matrimonial home is unlike other owned property in that most of the time its value will be divided equally regardless of who owns it or when it was purchased.
Will we also split the debts?
All of you and your spouse’s debts incurred during your marriage will be included in the calculation. Debts such as mortgages, credit cards, lines of credit and personal loans will all be split 50/50.
Divorce Mediation Questions & Answers
The following divorce mediation questions highlight some of the most common issues that that may come up in your search for a mediator. I believe that learning about the mediation process, costs, and settlement will help you find the best divorce mediator for you.
Am I a good candidate for mediation?
This is a very important question you should ask yourself. If you are looking to finalize your divorce in a cost effective, timely, and conflict-averse way then divorce mediation IS right for you.
Sometimes people are unable to move past their anger or feelings of being wronged – and are looking to use the divorce process as a weapon against their husband or wife. Even though you may be upset, it is important that you understand the mediation process is designed to avoid conflict. Mediation is a tool that is most effective when both parties come to the table ready to move forward.
What makes a good mediator?
Defining (or choosing) a good mediator is obviously very subjective. What may be good for some people may not be good for others. There are however a number of factors that can be very important:
- Is the mediator experienced?
- Is the divorce mediator compassionate about your divorce situation?
- Is there a divorce mediation plan or a process?
- Does the divorce mediator have a clear and concise retainer agreement?
- If you have children in a divorce, is the mediator experienced with parenting plans?
- Do you feel like you have a voice?
- Finally, is the mediator too busy to talk to you? In a divorce mediation where emotions run high, this can be a determining factor of great importance.
What happens in a mediation session?
One of the most common divorce mediation questions pertains to the mediation sessions (or meetings). My mediation sessions are usually 1-2 hours long. The first session is always with both parties present, and deals with the divorce mediation and retainer agreement (link to retainer). The mediation retainer explains the rules, the payments, and the process of the divorce mediation.
Each party will then have an individual session with me, also lasting between 1-2 hours. This session allows each party to give me their side of the divorce and enables their voice to be heard. I find this is critically important in the overall divorce mediation process.
Thereafter, there will be a series of 2 hours sessions that deal with children, property and support. The number of these sessions is determined by the progress the couple is able to make with each other.
Once the mediation has been concluded there will be one final session where I will read through the Memorandum of Understanding to ensure that both parties are in agreement, before each is given a hard copy to take to the lawyer for independent legal advice.
What is a mediation retainer and what should it include?
- What are the rules of the mediation?
- Is the mediation open or closed?
- What are the costs?
- What is the retainer and how is it managed?
If I use a mediator will my legal rights be protected?
Many people are concerned when using a divorce mediator that their legal rights will not be protected. This is inaccurate. At the end of the mediation the divorce mediator will produce a Memorandum of Understanding , which will detail in writing all the verbal agreements that the two parties have decided together. This document is then taken to a lawyer who will go through the memorandum to ensure that no legal mistakes have been made. This is called independent legal advice and is an integral part of the mediation process. If there have been any mistakes made in law, the lawyer will be able to correct them prior to the signing of the separation agreement. In short, the divorce mediation will never commit you to a decision which is undermines your legal rights.
As a side note, my legal background puts me at an advantage when it comes to understanding the laws that protect my clients. I have advance knowledge of the divorce laws in Toronto and I have also worked collaboratively with other divorce attorneys on numerous cases.
What if no progress has been made in mediation? Can I stop the mediation?
The divorce mediation process is voluntary and it is understood that either of the mediating parties may terminate the mediation process at any time. If a mediating party wishes to terminate, he or she must first discuss the concerns with me. I will listen to all questions and concerns and to see if they can be addressed satisfactorily. If not, the mediating party is entitled to leave the mediation.
Can the divorce mediator withdraw?
I as the Mediator may suspend or terminate mediation whenever:
- The process is likely to harm or prejudice one or more of the participants; or
- The usefulness of the mediation process is exhausted; or
- The Agreement being reached is unreasonable.
I will always first advise the parties of the reason why I believe the mediation should be terminated in order to see whether the circumstances can be changed. If they cannot I will terminate the mediation on notice to both parties.
I have never yet, in 10 years, had to terminate a divorce mediation.