By Dawn CallejaUpdated Jul 13, 2021
Photo: Erik Putz
You didn’t want it to end like this—no one does, particularly when there are kids involved. But the fact is, about 40 percent of Canadian marriages end in divorce. That’s roughly 70,000 couples each year. If you and your spouse are considering joining their ranks, this should give you hope: The vast majority of divorce cases are settled out of court—just one percent end up going to trial. (That means you’ll likely be able to sidestep a process that can last years and cost hundreds of thousands of dollars.) And there’s a growing number of divorce professionals who can help you stay away from the courts entirely.
Call it “conscious uncoupling” if you will, but a saner approach makes common sense. Canada’s family court system is overloaded—in Ontario, for instance, it can take months just to get a preliminary case conference, and there are backlogs in just about every province. That means judges don’t have time to get a handle on you and your soon-to-be-ex’s financial constraints, your parenting goals and your kids’ extracurricular schedules. They need to push as many couples through the system as quickly as possible, and that forces them to impose one-size-fits-all custody and support solutions that don’t work for many families.
“Families are like snowflakes—no two are the same,” says Gary Direnfeld, a social worker based in Dundas, Ont. That means one spouse often emerges the winner, guaranteeing a disgruntled ex and increasing the likelihood of conflict outside the courtroom. “And the higher the conflict between parents, the poorer the outcome for kids,” warns Direnfeld, who specializes in helping couples co-parent after a split. Studies have found that children of divorce—particularly acrimonious ones—are more likely to suffer from depression, anxiety and low self-esteem than those of married parents, and even more likely to struggle academically, and experience mental health problems and substance abuse.
The key to post-marital bliss (for you and your kids) is negotiating a legally binding separation agreement that’s fine-tuned to your family’s needs. “People don’t always understand that the divorce decree is just a formality,” says Darren Gingras, a financial broker and co-founder of the Common Sense Divorce. It’s the separation agreement that counts. This document sets out the division of assets, a custody schedule that works with each parent’s career, realistic spousal and child support amounts, who pays for swimming lessons and university tuition, where the kids will spend their holidays and so on. That’s the kind of detail most judges don’t have time to focus on. Sure, you could draft your own agreement on the back of a napkin, and it might hold—for now. But what if things change? What if one of you gets laid off or remarries and decides to relocate?
The last thing you want is to end up in front of a judge in a few years (or even a few months) because your plan doesn’t work in real life. The vast majority of couples have a better shot at avoiding a breakdown by working with legal professionals outside the court system. Bonus: It can cost a fraction of what you’d pay for a traditional my-lawyer-versus-yours divorce.
So before you lawyer up, take a deep breath, consider your options—and save yourself a whole lot of grief (not to mention money).
What is it? You and your spouse each hire a collaborative lawyer, who is trained to de-escalate conflict and work to find mutually beneficial—or at least tolerable—solutions. Both parties agree not to go to court; if the collaborative process breaks down, they must hire new lawyers. The idea is to find a settlement that’s best for the entire family. “At the core of collaborative law is a belief that families will always be families, even though they might be separated,” says Karen Redmond, a collaborative lawyer in Vancouver. She adds that people going through divorce often need help lawyers can’t give: co-parenting strategies, emotional support and financial advice. Collaborative lawyers work as part of a hub, bringing in other professionals to support the process.
Best for: Any couple, including those with a lot of conflict.
Cost: Between $6,000 and $20,000 per spouse, including legal fees and the cost of other professionals called in to consult. The more complicated and acrimonious the process is, the higher the final bill. “It’s better bang for your buck, because you’re getting a team that is going to support you,” says Redmond.
Case Study Steve and Madeleine* had been married for seven years and had two boys, ages three and six, when they started going to mediation. “Initially, I was hoping we could have a non-married but still friendly relationship,” Steve says. He admits he misjudged how angry she would be. “I’m the type of person who would’ve tried to work at it forever,” she says of their marriage. They knew an ugly battle would only hurt the kids, so she pitched the idea of collaborative law. “You both feel like you have someone on your side,” Madeleine says.
Before meeting with their collaborative lawyers, they each consulted separate divorce and parenting coaches to determine their priorities. A self-described Type-A personality, Madeleine was surprised by how many “touchy-feely” questions there were—about her goals, parenting style and religious beliefs. But she came to appreciate the importance of a separation and parenting agreement that reflected each partner’s values and goals. “It’s the blueprint you will use to go forward in your life,” she says. They met with their lawyers and coaches once a month for about eight months, each time moving further away from their entrenched positions and closer to a mutual agreement.
Still, she had a hard time letting go of her anger. The couple drafted a separation agreement and officially divorced with the help of their collaborative lawyer. A year later, however, Madeleine ended up taking Steve to court. The judge recommended they try mediation. Instead, they returned to their collaborative team and finished the process once and for all. “My lawyer and divorce coach helped me see how my combative approach was hurting my life and my kids’ lives,” she says. She kept the house (which she’d paid for largely using an inheritance), but they share the boys 50-50. Once a month they talk to organize schedules. “The boys are exposed to a happier lifestyle in both houses, because we’re happier,” she says. “My ex and I didn’t have the mechanisms to do this gracefully on our own.”
Mediation What is it? You and your spouse sit down with a neutral third party (a mediator who is trained in non-adversarial dispute resolution) to create a “memorandum of understanding” to use as a basis for the separation agreement. “The focus is on solutions, not past problems,” says Dean Bergsma, a mediator with the Divorce Company in Edmonton. In other words, it doesn’t matter how you got here—both parties must promise to act in good faith to come up with a settlement rather than playing the blame game. “Mediation works best when both sides recognize they’re in this together and that both of them are entitled to a fair settlement,” says Bergsma. “One side doesn’t take all.” He will often ask couples to set their own ground rules for their sessions—which can be as specific as no eye rolling when the other spouse is speaking—so they can take ownership of the process.
Best for: Couples with little to some conflict do best, but high-conflict couples would also greatly benefit.
Cost: Between $3,000 and $10,000, plus the cost of having a lawyer draw up a legally binding agreement ($1,500 or more) that the couple can take to a judge for approval.
Case Study Both Rachel and Peter* knew it was over. For a year and a half, Peter had been spending his nights in the guest bedroom, feeling like little more than the family handyman. There were no knock-down, drag-out fights, only sad resignation. “We wanted to make the process as pain-free and cost-effective as possible,” says Rachel, a mom of two boys, then ages 12 and 13. “We also wanted to do this together so everything was out in the open and fair.” Since stay-at-home mom Rachel felt at a disadvantage to her business-savvy spouse when it came to budgets and pensions, they hired a mediator with a business background who could walk her through the calculations. They attended three meetings with him, each one lasting up to five hours.
“Anyone going into the mediation process thinking I want, I want is fooling themselves,” says Peter. For the process to work, he says, “there’s got to be give and take.” In the end, he and Rachel split their assets in half, with Peter paying Rachel child and spousal support totalling $3,800 a month. That’s $800 more than he was required to pay according to the Federal Child Support Guidelines. “We figured out a number that meant Rachel would be comfortable,” he says.
All-in-one divorce package What is it? Do a quick Google search and you’ll find dozens of online services offering to sever the knot for a few hundred bucks. They’ll help fill out your divorce documents (which can run up to 20 bewildering pages) and even file them with the appropriate provincial court registry. Sounds great, right? Not so fast. The reality is that a DIY divorce can end up costing you big time, both financially and emotionally. Gingras gets a dozen phone calls a week at his Toronto-based company from people who opted for a quickie divorce after drawing up their own “kitchen table” separation agreement—only to have it fall apart within a year, driving them into the court system.
Gingras’s view: “Do it right, from the beginning.” At The Common Sense Divorce—which he co-founded with money maven and two-time divorcee Gail Vaz-Oxlade—a combination of mediators, therapists, financial specialists and lawyers will help you and your spouse negotiate a separation agreement. Some 90 percent of the company’s clients come in as a couple. When you have a document in hand, the Common Sense Divorce sends each spouse for independent legal advice, with pre-vetted lawyers who evaluate the agreement and raise potential problems. The process, says Gingras, is a mash-up of all the best parts of collaborative law, mediation and good old-fashioned lawyer-assisted negotiation. (There is a similar service with outposts across Ontario and the West called Fairway Divorce.)
“We’re not trying to do discount divorces,” says Gingras, who spent years working with clients who had been financially destroyed by divorce, “just something that’s viable for middle-class Canadians.”
Best for: The cost-conscious and co-operative.
Cost: Around $4,000, though the price varies depending on the situation.
Case Study Jeanine and Bryan* spent 10 years trying to have a baby, suffering five miscarriages. At last they had a baby girl. But when their daughter was seven months old, Jeanine discovered Bryan had been having an affair. Jeanine started researching divorce online. “The costs terrified me,” she says. She pitched the idea of an all-in-one package. He was all for it. “I know people who are $70,000 in the hole from trying to get divorced. It’s a nightmare,” he says.
They met separately with Darren Gingras at The Common Sense Divorce, and had private meetings with a mediator before sitting down together to draft an agreement. “The mediator helped us keep the emotion out of it,” she says. If they started to bicker or hurl accusations, the mediator would remind them: “You’ve both agreed it’s over; now you need to focus on what the future looks like.” They sold their home, split the proceeds and walked away with any assets (and debts) in their own names. As for their daughter, she lives primarily with Jeanine but spends two nights a week with Bryan and sees him almost every day. Since Jeanine and Bryan have similar incomes and split kid-related expenses, she agreed to child support payments that were lower than what the Federal Child Support Guidelines dictated—all of which was explained to her during her independent legal advice (ILA) session. “The lawyer showed me where the agreement was different from what the court would award me and respected my decisions if he felt they were fair,” she says.
Bryan’s ILA session—with a “bloodthirsty” divorce lawyer—was the only negative part of the process. The lawyer wanted to pick a fight about whether their daughter would attend Catholic school, a detail that hadn’t been nailed down in their separation agreement. “I had to talk the lawyer out of pursuing it,” he says. “If we’d done the whole divorce with lawyers, it would’ve been ugly.” Instead, he and his ex now attend all their daughter’s activities together—soccer, school concerts—and even the Santa Claus parade.
Other help1. Divorce Therapist Ending a marriage means strapping yourself in for an emotional roller-coaster ride—sadness, fear, excitement, anxiety. That’s why divorce therapists urge separating couples to address their psychological states even before they seek legal advice. Sort out your feelings first and you’ll be more likely to reach a deal that fits your family, not one that punishes your ex.
“We help people prepare for the transition they’re about to go through,” says Susan Cook, a registered social worker at Family TLC in Barrie, Ont. Aside from providing more traditional divorce-centric therapy, TLC has developed a survey to help determine how ready each party is to negotiate an agreement. How well do you and your soon-to-be-ex communicate? How similar are your parenting priorities? The survey also gauges financial acumen and whether there’s an inherent power imbalance. Cook will then meet with each spouse to discuss the results and get them the help they need—emotional, financial, legal or otherwise—to negotiate with as little conflict as possible. “Often when a separation agreement falls apart,” says Cook, “it’s because the couple didn’t resolve their emotions before they got down to negotiations.”
Cost: From $100 an hour.
2. Divorce Doula Think of a divorce doula as an honest friend who knows the ins and outs of divorce law. He or she can walk you through what to expect in the early days, help prepare the financial documents you’ll need, translate lawyer-speak into plain English and give tips on how to get the most out of a mediation session. “I can’t give my clients legal advice, but I can give them knowledge,” says Lynn Kaplan, a Toronto-based divorce doula. “And the more they know, the more they are empowered.”
There’s no formal certification for this gig, but Kaplan, for one, has loads of cred: She’s a trained family mediator, family arbitrator, parenting coordinator and single mom who has survived two divorces. In addition to helping clients navigate the legal system, she will ask tough questions, like whether you can really afford to keep the family house (and she’ll help you pore over your budget to find the answer) or how you plan to get back into the workforce after years at home. “Plus, I’m there to give them the emotional support they need and deserve during a really difficult process,” says Kaplan. She’ll help you prepare for your first kidless weekend and figure out how to forge a new single life for yourself—encouraging you to reconnect with old friends and join clubs. If you need to vent about your ex’s new partner, all you have to do is pick up the phone. She's even taught newly single dads how to cook family dinners.
Cost: Anywhere from $80 to $175 an hour.
3. Divorce Financial Planner Finances often end up being one of the major sticking points in divorce. “Most people think the rules around division of assets are black and white,” says Eva Sachs, a certified divorce financial analyst based in Toronto. They’re not. “There’s so much variability in what can be negotiated,” she says. Divorcing spouses don’t have to split their assets down the middle—particularly when there are businesses and houses involved. They also don’t have to adhere to the federal Spousal Support Advisory Guidelines, which can leave one spouse in financial straits. Sachs, who works as part of a collaborative law team, puts together projections based on detailed budgets to help both parties figure out how much they need to live comfortably. “Maybe keeping the family house and forcing one parent to work 70 hours a week to pay for it is not what’s best for the kids,” she says. It might make more sense for both parties to rent while the dust settles. She also sees individual clients, and vets financial settlements being offered up by the other party. “For years, we’ve put a wall between pragmatic and legal discussions,” she says. “We can’t do that anymore.”
Cost: Most planners charge an hourly rate. Sachs’s fee is $225, with packages that range from $375 for a 90-minute consultation to $1,800 for a full projection based on a settlement offer.
4. Parenting Expert Think of a visit to Gary Direnfeld as couples’ counselling—“because as parents you’re still a couple, even after your divorce,” he says. Direnfeld specializes in post-split parenting, and he’s an outspoken proponent of non-adversarial divorce, where the focus is on what’s truly best for the kids. “Parents don’t recognize how dire the consequences of litigation can be,” he says. He recommends couples consult a social worker even before they break the news to their kids. “I help couples craft the story they’re going to tell the children,” he says. He also helps clients develop a detailed parenting plan—who has the kids when, how they split the holidays, even who pays for the winter boots. “Lawyers are experts at law; they’re not necessarily experts at parenting,” says Direnfeld. “Ultimately, this is about how to move forward, preserve your assets and come through this as healthy as possible—both parents and children.”
Cost: A few hundred to a few thousand dollars.
* names have been changed
Estimating support payments In 1997, the federal government introduced the Federal Child Support Guidelines, a simplified way to calculate support payments. The idea was to reduce conflict between divorcing spouses and encourage out-of-court settlements by setting down objective amounts for parents.
To calculate child support payments, go to justice.gc.ca/eng/fl-df/, and type in your (and your spouse's) gross annual income, the number of kids you have, the percentage of custody and your province of residence.
Keep in mind that the number reached is just a guideline and is often not the final child support to be paid—if there are special expenses such as child care or if you share custody, the amount will likely be different. And you can argue before a judge to receive more or pay less, depending on special circumstances.
You and your ex can also negotiate an amount that varies from the federal tables, as long as you can prove it’s a fair deal for each party and that you both entered into the agreement fully understanding the implications. But this calculator will give you a starting point.
A version of this article appeared in our April 2016 issue, titled "The New Divorce", pg. 68-74.