Willer Family Law

Your Family Litigation Experts
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When does litigation occur?

While a negotiated or mediated settlement is always preferable, that requires parties to be on reasonable terms and have mutual desire to settle their affairs. 

Unfortunately, in many cases this is not an option and the parties have to deal with the matter in court.  This should always be a last resort.  

Litigation is expensive and time consuming and requires extensive knowledge of the rules of procedure and evidence.

A standard family law court case includes a case conference, settlement conference, pre-trial questioning, motions and a trial.  The duration of a case from start to finish is measured in years, not months.

When are mediation or arbitration used?

Both mediation and arbitration are means of resolving legal issues outside of the courtroom.

The processes allow parties to reach an agreement without a lengthy court proceeding.

Mediation is a conflict resolution method that has a neutral third party called a mediator who helps the two parties resolve their issues collaboratively.


Mediation is a non-binding process which means that while the mediator is highly qualified with conflict resolution skills and legal knowledge, mediators do not have the power to make a final decision.

The decision is ultimately left to the two arguing parties who must voluntarily agree to a resolution with the assistance and guidance of their respective lawyers.


Arbitration, similar to mediation, is the process of settling the conflict with the help of a third party.

However, arbitration grants an arbitrator the authority to make a final decision about all of the issues in your case.

The arbitration process is more structured than the mediation process and more similar to a court case.

With the assistance of their respective counsel, each party presents their own evidence and legal submissions.

Once each party has presented their case the arbitrator will consider both sides and arrive at a final decision.

What is the difference between separation and divorce?

You can separate if you are married or cohabiting. Only married spouses can divorce.

A separation is when two people who are married, or who have been living in a common law relationship decide to live apart. If you are cohabitating, a separation ends your relationship.

Under Canadian divorce laws, if you are married, the marriage officially ends when you are legally divorced in court.

Canadian divorce laws include a no-fault divorce, requiring you to demonstrate a breakdown in your marriage for a period of one year.

Parties who are negotiating or finalizing agreements are usually advised to obtain independent legal advice (ILA) from separate lawyers who are unbiased and unrelated to the matter.

Each lawyer that provides ILA solely represents the interests of one party to the agreement.

The lawyer providing the ILA reviews the agreement with you to ensure you fully understand the nature and consequences of signing the agreement and are not under duress or pressure to sign the agreement.

Upon receiving  you ILA will receive an ILA certificate; the purpose of the certificate is to minimize the probability at a future date that a party will challenge the agreement because they did not have adequate information (financial disclosure) or understand the content prior to signing.

What is the difference between decision-making and parenting time?

The guiding principle for the courts in deciding child-related matters is the best interests of the child.

Decision-making (formally referred to as “custody” ) refers to a parent’s legal right to make decisions for their children, generally in the areas of:

  1. Health;
  2. Education;
  3. Culture, language, religion and spirituality; and
  4. Significant extra-curricular activities.

Parenting Time (formerly referred to as “access”) refers to the schedule or amount of time the children spend in the care of each parent. It is distinct and separate from Decision-making.

How is child support determined?

At the end of a relationship, where there are children involved, one of the primary concerns is to ensure that the children are provided with adequate care and support. Child support is determined by the Child Support Guidelines. Considerations in determining child support include the specific parenting arrangement and the incomes of the parties.  The income of the parties can become a complex issue where a party is self-employed or underemployed and often times will require the assistance of experts to determine income.  

How is spousal support determined?

Entitlement to spousal support may arise from either a marriage or common law relationship. The outcome may be based on a spouse’s  actual need for support or an economic disadvantage resulting from the relationship. The amount of support awarded can vary greatly although the Spousal Support Advisory Guidelines attempts to bring some stability and predictability.  Factors that are considered include the length of the relationship, the roles during the marriage, parenting responsibilities, the disparity in income between the parties and their ability to become self-sufficient.   

How is property divided?

One of the primary goals upon separation is to achieve a fair division of property and assets. Under the Family Law Act (Ontario) married spouses are subject to a property division regime called “Equalization of Net Family Property”. 

Determining the values of assets and liabilities as at the date of marriage and as at the date of separation, which is the date when one or both partners decide to end the marriage or relationship, is the starting point. Other considerations relate to the source of certain assets received during marriage, such as gifts from third parties, inheritances, certain lawsuit proceeds, and insurance proceeds, which may be considered differently in the equalization process. 

Unmarried or common law spouses are not subject to the automatic equalization regime of the Family Law Act and are required to make out their property claims on a different basis.

Common law claims include joint family venture, unjust enrichment, resulting trust and constructive trust, all of which can result in either a monetary payment or an interest in certain property.    

A legal opinion is a formal opinion from a lawyer expressing legal analysis and  conclusions about issues in your matter.   Legal opinion letters can be essential for safeguarding a client’s interests as they receive valuable information from experienced counsel that will allow them to make informed decisions about their situation. 

What is an appeal and when do they occur?

An appeal is a request to a higher court to review a lower court trial or other decision.

Appeals involve legally complex arguments and it’s almost always necessary to have a lawyer with appellate experience representing you for the appeal.

Appeals can be heard in the Ontario Divisional Court, Ontario Court of Appeal and in

very rare cases the Supreme Court of Canada.