Specialized Services for Separating and Divorcing Families
Mediation is a process whereby parents work collaboratively with a neutral professional in order to consider and resolve the child-related legal issues, and details of co-parenting within a post-separation reality. The process enables parents to address differences between themselves that might impact adversely on their children’s health, happiness and stability if left unresolved. The mediation process encourages better communication skills and provides an opportunity for parents to work cooperatively with one another. In contrast to litigation, the parents work independently, or together with their mediator who will promote conflict resolution with attention to addressing their respective concerns and focusing on the best interests of their children. Most parents are able to use mediation effectively and as such avoid the cost and stress often associated with litigation.
Mediators can either be lawyers or mental health professionals who have expertise in this specialized area. Mediation services may be either ‘closed’ or ‘open’. The path chosen will usually be determined in consultation with legal counsel in consideration of the degree of confidentiality provided for in the process.
Closed mediation is a private, off-the-record process. As such, the parents agree that information regarding the process will not be raised in any subsequent legal proceeding between them. The mediator cannot testify in court and the entire content of the mediation process, including file notes, is not admissible in court. However a detailed summary of agreements (the ‘parenting plan’ or ‘memorandum of understanding’) will be provided at the end of the process.
Where open mediation is chosen, the parents understand that some information may be disclosed surrounding any issues of impasse. As such, aspects of the process may be available to the parties, counsel and the court, and the mediator may be called to testify.
A parenting plan is a document that outlines the ways in which two parents will participate in the lives of their children, including processes for major and day-to-day decisions, the parenting schedule, the details of vacations with the children, co-parental communication, and future dispute resolution. Parenting plans provide a structure for approaching and reducing potential conflicts.
Many parents negotiate the contents of their parenting plan through mediation. In this case, the parenting plan will reflect all of the agreements reached between the parents. Any issues that the parents are unable to resolve will not be reflected in the document. The parenting plan is not a legally binding document but is a statement of intention by the parents. It can be finalized into a legal agreement subject to independent legal advice received by each parent from his or her legal counsel.
Views and Preferences (Voice of the Child)
When parents separate or divorce, significant decisions are typically made impacting the day-to-day lives of the children involved. The views and preferences process provides a way for children to have a voice in family law proceedings that may affect them.
There is growing recognition in the social science research literature on the value of children having age-appropriate input, and for their parents to consider this input in their post-separation planning. Older children may benefit from sharing what is important to them in their lives, which may include expressing their ideas about special activities or living arrangements. Parents are also more likely to settle their disputes if they understand how their children see their situation and understand what is important to them. In the context of a views and preferences process, a child is assured of his or her role as a child and not as a decision maker, and as such care is given to alleviate pressure to choose between parents.
Upon request, a detailed report will be prepared and issued to parents and counsel. This report shall detail the themes discussed with the child, and his or her perspectives on a range of issues identified during the meetings.
Parenting Plan Assessments
When parents decide to separate, it is necessary for them to work out child-related matters such as final decision-making authority on major issues (“legal custody”) and parenting time (“access”), as well as other issues related to co-parenting their children. When parents are unable to settle these matters, a custody and access assessment (also known as a parenting plan assessment) may be ordered under Section 30 of the Children’s Law Reform Act.
A parenting plan assessment is a complex and comprehensive process. It involves a detailed investigation of a family's situation through extensive interviews of parents, the children, significant family members and community professionals, such as the child's school, therapists, and doctors. At times, psychological testing may be required. Additionally, observations of each parent with the children will take place in various settings.
Assessments typically require between 45 to 60 hours of clinical time, spanning about four months; however, this can vary from family to family.
After obtaining detailed historical information and a fulsome understanding of the current dynamics perpetuating the impasse, recommendations are provided that meets the children’s best interests and developmental needs. Such recommendations often comprise a detailed parenting plan, usually disclosed in a meeting with the parents and legal counsel. The recommendations may facilitate settlement between the co-parents, and promote the restoration of healthy family relationships within the context of separation. A report may be provided upon request.