FAQs - Collaborative Family Law

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The collaborative approach is a voluntary process of separation in which both spouses agree to reach a resolution outside of court. Unlike mediation, both parties are represented individually and retain their own lawyer who is collaboratively-trained. It’s an excellent option for those who prefer to be represented individually but want to remain out of court.

Just because two spouses agree to separate using the collaborative approach, this does not mean that there is no conflict or complicated financial situations. Many collaborative cases do indeed start off with a high level of conflict. However, the approach aims to steer away from the pain of battling about the past and instead focus on the present to reach an amicable resolution. 

To help achieve this, the collaborative approach emphasizes bringing in external experts when required, such as financial advisors, social workers, and therapists. Instead of only dealing with a lawyer throughout your separation, non-lawyer experts can weigh in on the non-legal parts of your separation, allowing everyone to reach solutions faster, more accurately, and in a more cost-effective way than going to court.

Now, don’t let the word “collaborative” confuse you; this is not about throwing in the towel and accepting whatever is presented to you! In the collaborative process, you still have a lawyer who is on your side and advocating for you. However, rather than taking an adversarial approach with your spouse, your collaborative lawyer is there to coach you to be wise and realistic through moments of rising conflict. To summarize: don't let your perfect be the enemy of the best good for everyone. 

Unlike with traditional litigation, where lawyers and judges tend to be at the forefront of all negotiations and decisions, collaborative practice takes into account all aspects of your situation holistically. Separation and divorce is not just about the law and who gets what, this is an emotional, turbulent time that also involves finances and property, child custody and care, mental health, and family relationships. Collaborative practice acknowledges the benefit of including non-lawyer professionals in the separation process to help you transition into this new period in your life. 

Furthermore, though not guaranteed, collaborative practice tends to acheive a quicker and less expensive resolution than conventional court settlement. In collaborative practice, everyone works together as a team to find the most appropriate resolution, rather than witholding information or creating litigation strategies to gain leverage or prolong the process. This cooperative approach often reduces conflict, fosters mutual understanding, and helps both parties move forward more constructively. 

Finally, in collaborative practice, as a separating partner you have much more control over the timelines of the separation than with litigation. While going to court can be extremely lengthy, expensive, and emotionally taxing, collaborative practice allows for more creative options, meaning that the process tends to be less stressful, more cost-effective, and more empowering for the whole family.

Collaborative lawyers are trained to work as a team, not as adversaries. This means that every person involved, including the lawyer for your spouse, works together to acheive a resolution that fits the needs of the whole family. Team members may also include a financial advisor and a family professional, depending on your situation and your family’s needs, values, and financial resources.

To start the collaborative process, after your initial intake meeting with a collaboratively-trained lawyer, you and your spouse each retain a separate collaborative lawyer. These two lawyers then speak to each other, usually through a phone call, to figure what what both partners' goals and interests are with the separation. This is also an important moment to determine whether it would be beneficial to include a family and/or financial professional in the process. Afterwards, you and your spouse sign a collaborative practice agreement with all collaborative professionals involved in the case, after which you become "participants" in the collaborative process. All participants agree to work together ethically and cooperatively and to provide full financial disclosure. If negotiations break down in collaborative practice, the professionals must withdraw per the collaborative practice agreement, and each spouse must retain different lawyers to take the matter forward to court.

Collaborative practice is an excellent alternative to litigation for clients with a specific profile. Remember that this is a client-centered, solution-focused alternative to court that emphasizes respect, transparency, and long-term well-being for the whole family. It’s not ideal for every situation, but it can be an excellent option for spouses with a certain mindset and goals. 

If this approach is right for you, you are likely a person who is: 

1. Committed to separating amicably; 
2. Willing to maintain dignity and respect with your spouse; 
3. Prepared to work hard to find solutions that work for not just for you but for the whole family; 
4. Not driven by the need to "win", and instead cares more about the health and well-being of your spouse/children; and 
5. Motivated to minimize conflict and avoid the emotional & financial costs of a court battle.

If these values resonate with you, collaborative practice may offer the most constructive path forward. 

In Ontario, probate is the legal process that confirms a Will is valid and gives the Executor (also known as Estate Trustee) the authority to act on behalf of the estate. 

More formally, it’s called applying for a Certificate of Appointment of Estate Trustee with a Will (or without a Will, if none exists). This certificate is issued by the court and allows the executor to access the deceased's assets (i.e.: bank accounts, real estate, investments, etc.) and begin distributing them according to the Will.

As mentioned above, once a Will is "probated" (i.e., the court issues the Certificate of Appointment of Estate Trustee), it’s presumed to be valid. 

You would want to apply for probate when a third party (i.e.: bank, investment company, land registry office, etc.) requires legal confirmation that the Will is valid and that the executor has the authority to act. For example, financial institutions and land registry offices often require a probated Will before releasing funds or transferring property.  

Not only is it important with third parties, but probate also gives the executor official, court-recognized authority to manage and distribute the estate. This protects the executor from claims from beneficiaries that they’re acting without proper permission. Without probate, beneficiaries (or third parties) could challenge the executor’s right to act, particularly if the Will is unclear or disputed. Therefore, probate helps prevent these disputes by making the process more official and transparent.

Not necessarily. Smaller or simpler estates, or those where assets are jointly owned or have named beneficiaries (like life insurance or RRSPs), may avoid or minimize probate. For example, estates that may not need probate include:

• Where all assets are jointly owned with right of survivorship (i.e.: with a spouse);
• Where the only assets are those with named beneficiaries, like life insurance, RRSPs, or TFSAs;
• When the estate is small and financial institutions are willing to release funds without probate; or
• When there’s no real estate and assets are minimal or straightforward.

Even if probate isn't required for all assets, the executor may still choose to apply for it if there are concerns about disputes/claims or if clear legal authority is needed to deal with third parties. 

Remember that some assets do require probate, even if others don't. If an estate includes solely owned real estate, large bank accounts, or investments, probate is usually required. 

Probate tax and Estate Administration tax is the same and means the same thing (it is also sometimes called "probate fees"). 

In Ontario, Estate Administration tax is a tax paid to the provincial government when someone applies for a Certificate of Appointment of Estate Trustee, in other words, when they apply for probate. If an estate does not yet have the funds to pay the Estate Administration tax, you can request a deferral. This sometimes happens when an estate is “asset-rich but cash-poor”, meaning it has a lot of property assets but not a lot of liquid assets.

Estate Administration tax is based on the total value of the deceased’s estate that passes through the Will and requires probate.

"Executor" and "Estate Trustee" is the same and means the same thing. In Ontario, an Executor is the person named in a Will (or appointed by the court) to administer the estate of someone who has died. 

This is an important legal role with significant responsibilities. Some of these responsibilities include:

• Locate key documents
• Apply for probate (if required)
• Secure and value the estate
• Notify necessary parties & communicate with beneficiaries
• Pay debts and expenses
• File taxes
• Distribute the residue of the estate
• Keep detailed records

As an executor, maintaining a full paper trail of decisions, transactions, and correspondence, as well as  keeping clear, accurate, and detailed records is essential. It is important not just for good organization, but also for legal protection. Remember that if you are an executor, you have a fiduciary duty to act in the best interest of the estate and its beneficiaries.

Executors can be asked by beneficiaries to provide a full accounting of every dollar received, spent, or distributed. If you are a beneficiary, you have a legal right to this information. Therefore, it is best practice for an executor to create and maintain detailed records already in place to make any such requests manageable and to protect themself from claims of mishandling funds.