“We used to think it was impossible / Now you call me by my new last name / Memories seem like so long ago / Time always kills the pain / Remember Harbor Boulevard / The dreaming days where the mess was made / Look how all the kids have grown, oh / We have changed, but we’re still the same / After all that we’ve been through / I know we’re cool…”
Gwen Stefani, with her platinum blonde hair, alternative sense of fashion, and catchy songs, was an influential figure to millions of teenagers in North America in the 2000s. One of her lesser-known songs in her solo debut album, Love, Angel, Music, Baby. is “Cool.” In the song’s music video, in her classic red lipstick, Stefani excitedly greets a man and a woman visiting her mansion. Depicting Stefani in the past as a brunette and the present as a blonde, the music video for the song portrays the relationship she had with her bandmate Tony Kanal while she was the frontwoman for No Doubt. The lyrics convey bittersweet emotions; Stefani reminisces the past with her ex but also counts her blessings for everyone having closure and being happy with their new partners. Although Stefani and Kamal were only dating and not married, one can still respect the level of emotional maturity the song (and presumably the relationship that inspired it) demonstrates.
A Divorce Need Not Be Messy
There are three grounds for divorce in Canada. Section 8(2) of the federal Divorce Act states that the breakdown of the marriage is established only if the spouses have lived separate and apart for at least one year at the time of divorce, a spouse committed adultery, or one spouse treated another with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of spouses.
Most divorces are filed under the first ground – living separate and apart for one year or longer. This is because adultery and cruelty have been historically difficult to prove in court. By the time the case and its evidence are examined in depth by the judge, a full year of separation would have already taken place in most cases. Separations can be, understandably, emotionally charged. However, not every divorce has to be messy and calamitous. An amicable divorce is possible with the assistance of legal professionals and the right mindset.
What is amicable divorce? While it’s subjective, generally, it can be loosely defined as a divorce with minimal conflict or resistance between the parties as they part ways. An uncontested divorce occurs when a couple of files for divorce and agrees on all relevant issues, such as child support, spousal support, custody, access, and property division. Full-blown matrimonial litigation is often high-conflict, time-consuming, emotionally and financially draining; in contrast, an uncontested amicable divorce can be cost-effective, efficient, and much easier on the parties involved.
To fully benefit from and achieve an amicable divorce, parties should understand their legal rights and obligations prior to reaching an agreement on relevant issues. Otherwise, complications can arise, which leads to serious conflict; for instance, spouses may unwittingly reach agreements contrary to their best interests causing the court to refuse to grant the divorce until they come up with a different arrangement- or worse: litigate the issues. For example, it is settled law that child support as a right of the children of the marriage, not the recipient parent, and an out-of-court agreement between the parent to release each other from any child support obligations may lead to some raised judicial eyebrows and possibly a refusal to grant a divorce.
Family law is a complicated and ever-evolving area of the law, which is best navigated with a legal professional’s help and involvement with experience in family law. An amicable, uncontested divorce does not necessarily mean that lawyers should be excluded; retaining the professional service of a lawyer is not exclusive to an acrimonious matrimonial dispute. The right lawyers’ package help parties achieve the amicable and cost-effective settlement they desire and may even assist with coming up with creative solutions and options for settlement that spouses may not have yet explored.
Good counsel provides professional advice, specifically catered to their clients’ family constellations, financial circumstances, values, and personalities. Your lawyer helps collect and deliver financial disclosure, draft a separation agreement, review the other party’s offer and advise you on whether you are receiving a ‘good deal’ based on your rights and responsibilities under the law. We help minimize the risk of the divorce returning to your life through a court application because of a poorly drafted but well-intentioned separation agreement.
Of course, it is highly unusual for even the friendliest parting couples to agree on every issue that arises from their separation. It is okay not to agree on everything from the get-go; what matters is whether the gaps in positions are eventually reconciled and how efficiently this can be done without forsaking a significant amount of time, money, and other valuable resources. Alternative methods of dispute resolution, such as mediation, are excellent in this regard.
The Benefits of Family Law Mediation
In family law mediation, parties appoint a mutually agreeable mediator. Although the mediator cannot decide for the parties, they can facilitate a productive and constructive discussion between the spouses and their lawyers to reach a mutually agreeable and satisfactory resolution. The mediator does not represent either party.
There are many benefits of engaging in mediation, some of which are discussed in our previous blog article about various alternative dispute resolution methods. Perhaps the most significant benefit of mediation is that the entire process can be confidential if the parties choose closed mediation. This means that even if the case eventually heads to court, discussions and negotiations throughout the mediation will not and cannot be used as evidence in the trial.
Another benefit offered by the mediation process is that the parties can make their own rules and timeline. At the present moment, Family courts in Ontario are unfortunately extremely back-logged due to the sheer volume of cases, delays caused by parties, and the substantive and procedural impacts of COVID-19. Family law litigation involves several mandatory appearances before the court, whether in person or virtually, such as a first appearance (in some jurisdictions), a case conference, a settlement conference, and a trial management conference. These are only the mandatory appearances; either of the parties may bring motions for various types of relief, including financial disclosure, access, travel, sale of the matrimonial home, non-depletion of assets, or any other issues that are relevant to the litigation, which of course adds to legal costs. For these reasons, it is not unusual for family law litigation to be ongoing for years before it reaches the stage when the trial is held, and final orders are made. This can be incredibly problematic for an individual who would like to get closure in their marital issues sooner than later, such as someone who wishes to marry their new partner
Note: Canadian law requires that you are fully divorced from your previous spouse before getting married to your next spouse. Otherwise, the second marriage is deemed null and void. Furthermore, polygamy is a criminal offence in Canada under Section 293 of the Criminal Code, which is punishable by up to five years of imprisonment if proceeded indictably.
Parties involved in contentious or high conflict cases that head to trial are more likely to incur increased costs by retaining lawyers and other professionals and experts, such as business valuators, accountants, and parenting assessors. These experts will have to testify and provide evidence in court about critical issues such as how much the family business is worth, what the payor spouse’s income for child and spousal support is, and what parenting schedule is in the best interests of the child. The more people involved, the more interviews take place, and the more documents are exchanged. The more lengthy and complicated the procedure becomes, the more formality will be required in the interest of fairness, and the more likely the children are to be embroiled in the dispute. All appropriate parties should agree that the children should be minimally involved in the divorce and insulated from the conflict between parents.
Is Mediation for Everyone?
Unfortunately, mediation is not appropriate for every family. By its objective and structure, mediation only works when the parties are cooperative and share the goal of resolving their issues in the most amicable way possible. It is neither feasible nor useful in family dynamics in which there is an imbalance of power, history of domestic violence, or any other signs that indicate that mediation is just another step before the matter proceeds to more contentious stages, such as arbitration and litigation.
Although less complicated and costly than litigation, arbitration is more contentious than mediation, as it involves an arbitrator/ who listens to both parties’ submissions and makes a binding decision. An amicable divorce means that the parties can resolve without having a third party telling them what to do.
Closing Remarks
In family law, the adage of ‘less is more’ rings true. So much can be lost in the process of a bitter and lengthy separation. You deserve to find closure, inner peace and move onto the next stage of your life. Engaging in a contentious court battle is not a productive way to achieve these goals. Sometimes you might have no choice but to participate in the conflict as well, because the other party is purposefully being challenging, such as through delay in providing disclosure, steadfast and unreasonable positions, or refusal to consent to release of funds. Sometimes, a more adversarial process is necessary because difficult people will only listen to someone who has the authority to make decisions. It takes two reasonable people who are committed to achieving an amicable divorce for one to work.
Aside from exceptional circumstances, generally, it is in all parties’ best interests to remain courteous throughout the separation process and cooperate to the extent possible so that everyone can start anew with a clean slate and be “Cool”- just like Gwen Stefani.
This blog post is not intended to be legal advice and was written for general education purposes. Consult with a legal professional at Kain & Ball to determine your rights and responsibilities as a spouse. The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute divorce consultation with one of our experienced family law lawyers at Kain & Ball Family Law.