For many couples in Calgary and throughout Alberta, deciding to separate does not necessarily mean deciding to fight.
A separation can involve difficult decisions about children, finances, property, support and the family home. But disagreement over some of those issues does not automatically mean that spouses need to begin an adversarial court battle.
Many separating couples are able to resolve the important issues arising from their separation outside of court through discussion, negotiation and mediation. Once decisions have been made, those terms can be properly documented in a separation agreement allowing the couple to proceed toward an uncontested divorce without any court appearances.
At WIN/WIN Divorce Resolution in Calgary, this is an important part of what we help separating couples accomplish.
Our approach is designed around a simple principle: we help people make informed decisions, reduce unnecessary conflict, reach an amicable agreement and move through separation and divorce as efficiently as possible.
WIN/WIN provides mediation and paralegal services. We do not provide legal advice. When independent legal advice is required, clients should consult a family lawyer.
Can You Really Get Divorced Without Going to Court?
A legal divorce in Canada is ultimately granted by a court. However, that does not mean every separating couple needs to have a courtroom battle, trial or contested hearing.
If spouses are able to resolve the issues arising from their separation, their divorce may be able to proceed as an uncontested divorce.
The real objective is to eliminate the courts from the divorce process entirely. It is to keep the decision-making in the hands of the spouses, rather than having a judge make important decisions about their family because they could not reach an agreement on their own.
That difference can be significant.
Instead of asking:
“How do I fight my divorce in court?”
a separating couple may be able to ask:
“What do we need to resolve so that we don’t have to fight in court?”
That is where mediation can become particularly valuable.
What Is Divorce Mediation?
Mediation is a dispute-resolution process in which separating spouses work with a neutral mediator to discuss the issues they need to resolve.
The mediator does not represent either spouse.
The mediator does not decide who wins.
The mediator does not impose a settlement.
And the mediator does not replace each person’s lawyer or provide independent legal advice.
Instead, the mediator facilitates productive discussions, helps identify the matters that need to be addressed, helps the parties explore possible solutions and works to keep the discussion moving toward decisions both people can accept.
Depending on the circumstances, mediation may address matters such as:
- parenting arrangements;
- decision-making responsibilities;
- child support;
- spousal support;
- the family home;
- division of property;
- debts and liabilities;
- financial disclosure;
- practical separation arrangements; and
- other matters that need to be resolved before a comprehensive separation agreement can be prepared.
The spouses themselves remain responsible for their decisions.
Why Consider Mediation Before Litigation?
Separation is emotional. It can be tempting to believe that hiring someone to “fight” will make the process easier.
Sometimes court intervention is necessary. Mediation is not appropriate for every family or every situation.
But when both parties can participate safely and meaningfully, mediation can provide an opportunity to resolve disagreements without immediately turning those disagreements into litigation.
That can matter for several reasons.
You retain more control over the outcome
When a family dispute goes before a judge, the judge ultimately makes the decision.
Mediation gives spouses an opportunity to develop their own solutions.
This can be particularly important for parenting arrangements. Parents generally understand their children’s routines, personalities, school schedules, activities and individual needs better than anyone else.
A workable parenting arrangement may need more nuance than simply choosing a standard schedule.
Mediation can reduce unnecessary conflict
Divorce does not necessarily end the relationship between two people.
For parents, it changes it.
Former spouses may continue attending school events, graduations, birthdays, sporting activities, weddings and other family occasions for many years.
A process that unnecessarily intensifies hostility can make that future relationship more difficult.
Mediation cannot make every disagreement disappear, but it creates a structured environment in which people can try to resolve those disagreements constructively.
It may be less expensive than prolonged litigation
Legal disputes can become expensive when correspondence, applications, negotiations, hearings and other litigation steps accumulate.
The cost of any separation depends on its complexity and circumstances, and mediation cannot guarantee a particular cost.
However, reaching agreement outside of contested litigation can substantially change the amount of professional time required to resolve a separation.
For many families, preserving assets is particularly important because one household is becoming two.
The process can be more private
Mediation provides a private setting for discussions about personal family and financial matters.
For many people, that environment feels considerably different from preparing for contested court proceedings.
It can lead directly toward the next step
This is one of the most important practical advantages of the WIN/WIN process.
Mediation is not simply about having a productive conversation.
The objective is to resolve the issues that are preventing the parties from moving forward.
When agreement is reached, the next question becomes:
How do we properly document what we have agreed to?
That is where the separation agreement becomes important.
Step 1: Understand What Needs to Be Resolved
Before spouses can reach an agreement, they need to understand what decisions actually have to be made.
Every separation is different.
A couple without children may primarily need to address property, debts, support and financial matters.
Parents may also need to resolve issues involving parenting time, decision-making responsibilities, holidays, travel, children’s expenses and child support.
Homeowners may need to decide whether the family home will be sold or whether one spouse intends to retain it.
Couples with investments, pensions, corporations or other assets may have additional financial considerations.
Creating a complete list of unresolved issues early in the process can help prevent important matters from being overlooked.
Step 2: Gather Your Financial Information
Financial disclosure is an important part of resolving financial issues after separation.
Meaningful decisions are difficult to make when neither spouse has a complete understanding of the family’s finances.
Depending on the circumstances, relevant information may include:
- income information;
- tax returns and Notices of Assessment;
- bank accounts;
- mortgages;
- credit cards and lines of credit;
- RRSPs;
- TFSAs;
- non-registered investments;
- pensions;
- real estate;
- vehicles;
- business interests;
- loans;
- other assets; and
- other liabilities.
The objective is not merely to create a pile of paperwork.
It is to develop an accurate financial picture so that informed discussions can take place.
Step 3: Identify What You Already Agree On
Not every issue needs mediation.
Some couples arrive at WIN/WIN having already agreed on almost everything.
Others agree on parenting but disagree about property.
Another couple may agree that the house should be sold but disagree about support.
Identifying the areas of agreement allows the process to focus on the matters that actually require attention.
This can make mediation more efficient.
Step 4: Use Mediation to Work Through the Unresolved Issues
When spouses cannot reach agreement on their own, mediation can provide structure.
The mediator helps both people identify the issues, communicate their concerns and explore possible solutions.
This does not mean that each person must immediately compromise on everything.
Productive mediation often involves examining the practical consequences of different options.
For example:
What would a proposed parenting schedule actually look like during the school year?
How would holidays be divided?
If one person keeps the family home, can that person realistically afford the mortgage and ongoing expenses?
If an asset is transferred rather than sold, are there financial or tax considerations that should be explored?
How will children’s extraordinary expenses be handled?
What happens if circumstances change?
These are the kinds of practical questions that can turn a broad agreement into a workable one.
Step 5: Consider the Financial and Tax Consequences
Two proposed settlements can look similar on paper while producing different practical results.
Separating spouses should therefore look beyond the face value of an asset.
Different types of property can have different tax characteristics, liquidity and future implications.
For example, $100,000 held in one type of asset may not necessarily provide the same practical outcome as $100,000 held in another.
There may also be questions involving the family home, registered investments, pensions, capital gains, debt, cash flow and the affordability of maintaining particular assets after separation.
Shelly-Ann Petz has extensive experience and education in financial matters and can help clients understand financial information and practical considerations relevant to their discussions.
However, WIN/WIN is not providing investment, tax or legal advice. Depending on the issue, clients may need independent advice from a lawyer, accountant, tax professional, financial adviser or other qualified professional before making a final decision.
Step 6: Turn the Decisions Into a Separation Agreement
Reaching agreement is a major milestone.
But an informal understanding and a properly prepared separation agreement are not the same thing.
A comprehensive separation agreement records the terms the parties have reached and can address matters including:
- parenting arrangements;
- decision-making;
- child support;
- spousal support;
- property division;
- debts;
- the family home;
- pensions and investments;
- insurance;
- future dispute-resolution mechanisms; and
- other obligations arising from the separation.
This is where WIN/WIN’s combination of services is particularly useful.
A couple may initially contact us because they cannot agree on several issues and need mediation.
Through mediation, they may resolve those issues.
Once the decisions have been made, WIN/WIN can then assist with the paralegal side of the process and preparation of the separation agreement.
The parties should obtain independent legal advice from their respective family lawyers regarding their legal rights, obligations and the agreement.
The mediator remains neutral and does not become either person’s lawyer.
Step 7: Move Toward an Uncontested Divorce
A separation agreement and a divorce are related, but they are not the same thing.
A separation agreement deals with the issues arising from the breakdown of the relationship.
A divorce legally ends the marriage.
When spouses have resolved the relevant issues and the divorce is not being contested, they may be able to proceed through the uncontested divorce process.
WIN/WIN Divorce Resolution assists clients with uncontested divorce document preparation and processing.
This creates a logical progression:
Mediation → Agreement → Separation Agreement → Uncontested Divorce
Not every client requires every step.
Some people contact WIN/WIN after they have already agreed on everything and simply need assistance documenting their agreement.
Others begin with significant disagreements and require mediation before a separation agreement can be prepared.
The process can therefore be adapted to the circumstances of the couple.
Do You Have to Be Friendly With Your Ex to Mediate?
No.
Mediation does not require separating spouses to be friends.
It does not even require them to agree at the beginning.
If they already agreed about everything, there would be very little to mediate.
What matters is whether both people can participate appropriately in the process and are willing to explore potential solutions.
Some couples communicate relatively well.
Others are frustrated, angry or distrustful.
A mediator’s role includes creating structure around difficult conversations so that the discussion remains focused on the issues that need to be resolved.
However, there are circumstances in which mediation may not be appropriate.
When Might Mediation Not Be Appropriate?
Mediation is not automatically the right process for every separation.
Safety must come first.
Situations involving family violence, threats, coercive control, serious intimidation or significant power imbalances require careful consideration.
There may also be circumstances where urgent court intervention or immediate legal advice is required.
A mediator should consider whether the parties can participate voluntarily and meaningfully in the process.
If you are uncertain whether mediation is appropriate for your circumstances, discuss those concerns before beginning.
What If We Need Legal Advice?
This is an important distinction at WIN/WIN.
WIN/WIN Divorce Resolution provides information, mediation and paralegal services. We do not provide legal advice.
During mediation, Shelly-Ann remains neutral.
She cannot tell one spouse what that person should accept, advise one spouse against the other, or act as either person’s family lawyer.
Independent legal advice serves a different purpose.
A family lawyer can advise you about your individual legal rights, obligations, risks and the implications of a proposed agreement.
These roles can complement one another.
Using a mediator does not mean you are prohibited from consulting a lawyer.
In fact, there may be points during the process when obtaining independent legal advice is particularly important.
The objective is to use the appropriate professional for the appropriate task.
Do We Need Two Lawyers to Negotiate Everything?
Not necessarily.
Some couples choose lawyer-to-lawyer negotiation or litigation. Others use mediation to conduct the negotiations themselves with the assistance of a neutral mediator and consult independent lawyers when legal advice is required.
Which process is appropriate depends on the circumstances.
WIN/WIN’s role is not to discourage people from obtaining legal advice.
It is to provide another route for couples who want an opportunity to resolve their issues themselves rather than immediately placing every disagreement into an adversarial process.
What If We Already Agree on Everything?
You may not require mediation at all.
If you and your spouse have already reached agreement about the relevant issues, WIN/WIN can discuss assisting with preparation of your separation agreement and, where applicable, your uncontested divorce documents.
This is another reason the initial consultation is useful.
We can determine where you are in the process rather than assuming every separating couple needs the same service.
What If We Agree on Most Things but Have One Problem Left?
That can be an excellent reason to explore mediation.
A couple does not necessarily need to reopen every issue simply because one matter remains unresolved.
Perhaps you agree on parenting and property but cannot resolve spousal support.
Perhaps everything is settled except what happens to the family home.
Perhaps you have agreed on the general parenting schedule but cannot agree on holidays.
Mediation can focus on the remaining issue or issues.
Resolving one final disagreement may be what allows the entire separation to move forward.
Can Common-Law Couples Use Mediation?
Yes.
Mediation is not limited to legally married spouses.
People in adult interdependent relationships may also have issues involving property, parenting, support and finances that need to be resolved after separation.
The applicable legal rules can differ depending on the relationship and circumstances, so independent legal advice may be important.
WIN/WIN works with both married and unmarried separating couples.
Is Mediation Legally Binding?
Mediation itself is a process.
The mediator helps the parties work toward decisions but does not impose a judgment.
This distinction is important.
The next step after reaching agreement is therefore important.
The decisions can be used as the foundation for preparation of a formal separation agreement, with the parties obtaining appropriate independent legal advice.
This is why WIN/WIN does not view mediation as an isolated service.
For many clients, mediation is the resolution stage that allows them to move into the documentation stage.
How Long Does an Uncontested Divorce Take in Alberta?
There is no single timeline that applies to every divorce.
For a divorce based on separation, spouses generally must have lived separate and apart for at least one year before the divorce judgment is granted.
Processing times can also vary.
More importantly, the amount of time required to resolve the issues between spouses depends greatly on the couple.
A couple that has already reached agreement may be able to move to documentation much more quickly than a couple dealing with several unresolved parenting, support and property disputes.
Resolving those issues efficiently is one reason mediation can be valuable.
Do We Have to Wait a Year Before Working Out Our Separation Agreement?
The one-year separation period is associated with obtaining a divorce. It does not mean couples should spend a year avoiding the practical issues created by their separation.
Parenting arrangements, financial responsibilities, property, support and living arrangements may need attention much sooner.
Couples can work toward resolving their separation issues and have a separation agreement in place before the one-year period required for a divorce has elapsed.
A More Constructive Way to Think About Divorce
Divorce is often described using the language of winning and losing.
But when a family spends significant resources fighting, children are exposed to continuing conflict and former spouses become unable to communicate, it is worth asking what “winning” actually means.
WIN/WIN Divorce Resolution was founded on a different idea.
Whenever circumstances make it possible, separating couples should have an opportunity to resolve their differences without turning every disagreement into a battle.
That does not mean ignoring legal rights.
It does not mean accepting an agreement you do not understand.
And it does not mean mediation is appropriate in every situation.
It means recognizing that informed people, with the right professional assistance and independent advice when needed, may be capable of making many of their own decisions.
From Mediation to Separation Agreement to Divorce
For many Calgary couples, the path can be simpler than they initially expect.
First, determine what needs to be resolved.
Second, exchange the information required to make informed decisions.
Third, use mediation to work through unresolved issues where mediation is appropriate.
Fourth, document the decisions in a comprehensive separation agreement.
Fifth, obtain independent legal advice where required or appropriate.
Finally, if the requirements are satisfied and the divorce is uncontested, proceed with the divorce documentation.
The objective is not simply to “get divorced.”
It is to get through the separation process in a way that allows both people—and especially their children—to move forward.
Talk to WIN/WIN Divorce Resolution in Calgary
If you are separating in Calgary or elsewhere in Alberta and want to explore whether mediation can help you resolve outstanding issues, WIN/WIN Divorce Resolution can help you understand the process.
Some clients come to us needing mediation.
Some have already reached an agreement and need assistance preparing a separation agreement.
Others are ready to proceed with an uncontested divorce.
And many begin with mediation and continue with WIN/WIN for the paralegal and document-preparation stages once an agreement has been reached.
WIN/WIN Divorce Resolution
Calgary, Alberta
Call or text Shelly-Ann Petz: 403-462-4996
A free 20-minute telephone consultation is available to discuss where you are in the separation process and which WIN/WIN service may be appropriate.
Frequently Asked Questions
Can I get divorced in Alberta without hiring a lawyer?
People may represent themselves in family matters, but whether you should obtain a lawyer depends on your circumstances. WIN/WIN provides information, mediation and paralegal services but not legal advice. Independent legal advice from a family lawyer can be important when determining your rights and obligations and reviewing a proposed separation agreement.
Can a mediator give us legal advice?
No. A mediator is neutral and does not act as the lawyer for either spouse. The mediator facilitates discussion and helps the parties explore possible resolutions. Each party can obtain independent legal advice from their own lawyer.
Can mediation result in a separation agreement?
Mediation can help spouses reach decisions about the issues arising from their separation. Those decisions can then form the basis for preparation of a formal separation agreement. At WIN/WIN, this transition from mediation to separation-agreement preparation is an important part of the services available.
Can WIN/WIN prepare our separation agreement after mediation?
Yes. Where the parties have reached the necessary decisions, WIN/WIN provides paralegal assistance with preparation of separation agreements. The parties should obtain independent legal advice regarding their individual rights, obligations and the proposed agreement.
Can WIN/WIN help with the divorce after the separation agreement?
WIN/WIN assists with uncontested divorce documentation. This means clients who begin with mediation may be able to continue through the separation-agreement and uncontested-divorce stages rather than having to start the administrative process again elsewhere.
What happens if mediation doesn’t resolve everything?
Mediation does not require the parties to reach an agreement. If some matters remain unresolved, the parties can obtain legal advice about their options. Even resolving some issues through mediation may narrow the matters that remain in dispute.
Is mediation appropriate when we don’t get along?
Possibly. Couples do not need to be amicable to mediate. However, mediation must be safe and appropriate, and circumstances involving family violence, coercion, serious intimidation or significant power imbalance require particular consideration.
Important Information: This article provides general information only and is not legal, tax, investment or financial advice. Family circumstances differ. WIN/WIN Divorce Resolution provides information, mediation and paralegal services but does not provide legal advice. Consult an Alberta family lawyer for advice concerning your individual legal rights and obligations.