may open and print this article as a one-pager
handouts or use in a newsletter:
thought WHAT about court?
in Ontario using the family court to separate must attend a Mandatory
Information Program (MIP), before their first court appearance. The program is
co-presented between a mental health professional and family law lawyer. The
information provided is tightly scripted by the Ministry of the Attorney General
and highlights issues faced by separating couples and children and advises of
the court process as well as alternatives to court.
am on the panel of presenters of this program and have presented likely several
dozen times by now over the past few years.
is striking to learn from those in attendance how little they knew prior to
initiating a court action. Common myths include believing:
- Their issue would
be immediately heard and a Judge would quickly issue an order;
- That a person can
easily present their case on a one-sided basis without the other person
- That a person
could just appear and give spoken evidence with little to no paperwork;
- That if they
presented their case clearly, the judge would find in their favor;
- That their former
partner wouldn’t mediate and/or alternate dispute resolution services are
not for them;
- That once they
have an order in their favor, matters will be settled and the other person
will fall into line.
what myths! More to the point:
- There are
numerous meetings (called conferences) that take place prior to a trial;
- Those meetings
are typically many months apart, so if a matter actually goes to trial, the
trial may not be scheduled for well over a year from the beginning of the
- That each time
you appear at court you will be encouraged to resolve matters between
- That only in a
dire emergency will a court hear an issue on a one-sided basis in the
absence of the other person;
- That while
everyone believes they will win their case, somebody is going to lose and
you never know in advance who that will be;
- That people
unsatisfied with court orders (the loser) may not follow through
appropriately with what is required, if at all hence the conflict continues;
- That court often
becomes a revolving door when the dissatisfied person seeks to return the
matter believing they have new evidence;
- That those
alternative dispute resolution strategies will be used to different degrees
throughout the court process;
- That on average,
97% of matters DO NOT GO TO TRIAL because they are resolved by processes
such as mediation along the way.
reached voluntarily (even if you don’t totally love the agreement) tend to
be better followed and longer lasting that court orders.
of the information the family law lawyer provides at the program is about the
duty of the lawyer to inform people about the alternative dispute resolution
strategies such as collaborative law and mediation. Thereafter we present
information on a range of alternate dispute resolution strategies.
each session there are always several people who advise that their own lawyer
never advised of those strategies and these people were genuinely interested in
learning more and seeking those services.
- If you are in the
midst of a separation or divorce or contemplating a separation or divorce,
think carefully about how you want to go about resolving financial and
- When you choose a
family law lawyer, consider choosing one who is actually trained in
alternatives to going to court such as collaborative law and/or mediation.
Their training in these approaches will better equip them to explain and
determine the appropriateness for you.
- Seek the
input/support of a trained and experienced mental health professional early
in the process. Learn how to best support yourself and your children in the
process and for life thereafter.
- Don’t assume
your former partner won’t use alternate dispute resolution processes and
don’t fight about their disposition if they agree to attend yet tell you
they won’t change their demands. Go anyway without arguing about your
respective positions. Most persons enter into collaborative law and/or
mediation wanting what they want. You have to let the process unfold. Typically
with the input of the service provider peoples’ positions soften and they
learn how to better communicate, negotiate and resolve differences. Therein
is the magic of these services.
the way, the other lesson for people involved in a court action – the moment
you resolve matters… court ends.
Direnfeld, MSW, RSW
Gary Direnfeld is a social worker.
Courts in Ontario, Canada, consider him an expert in social work, marital
and family therapy, child development, parent-child relations and custody
and access matters. Gary is the host of the TV reality show, Newlywed,
Nearly Dead, parenting columnist for the Hamilton Spectator and author of
Marriage Rescue: Overcoming the ten deadly sins in failing relationships.
Gary maintains a private practice in Dundas Ontario, providing a range of
services for people in distress. He speaks at conferences and workshops
throughout North America.
Gary for your next conference and for expert opinion on family matters.
Services include counselling, mediation, assessment, assessment critiques
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