Why Most Family Law Matters Settle Rather Than Go to Trial
A trial is generally the last step in a family court case, not the first, and most family law matters in Ontario are ultimately resolved through some form of agreement rather than a full trial. There are a number of general reasons people tend to favour a negotiated settlement where one can genuinely be reached: it generally allows both people more control over the outcome than leaving the decision to a judge, it can often be reached with less time and stress than a trial, and it can make it easier to preserve a workable relationship afterward, which matters especially where children are involved.
None of this means a trial is never necessary — for some disputes, it genuinely is the only way to resolve a disagreement the two people cannot settle on their own. This page focuses on the more common general path: negotiating a settlement outside of, or alongside, a court case. For a look at the earlier, information-gathering stage of a court file, see our guide to case conferences.
The General Paths to a Negotiated Settlement
People generally reach a negotiated settlement through a few overlapping routes, and many cases involve more than one of these at different points.
Negotiating through lawyers. Each person's own lawyer generally exchanges proposals and counter-proposals on their behalf, drawing on their understanding of the relevant law and the facts of the situation. This route generally allows each person to have dedicated advocacy while still working toward an agreement rather than a trial.
Direct negotiation between the two people. Some people negotiate directly with their former partner, particularly where things are relatively amicable, and then bring the general outcome to their own lawyers for review before anything is finalized. This approach is not right for every relationship, and does not remove the value of independent legal advice before signing.
Mediation. A neutral mediator helps structure the conversation between the two people, without deciding the outcome for them. See our companion guide to family mediation for a fuller general explanation of how this process typically works and what a session might involve.
Negotiating within the court process. Even after a court case has started, negotiation generally continues, often formally at a settlement conference, where a judge helps the two people try to narrow or resolve the issues without a trial. See Settlement Conferences below.
Mediation vs. Negotiating Through Lawyers vs. Going to Court, at a Glance
The table below offers a general, simplified comparison of three common paths. Many situations blend more than one of these, and the right approach depends heavily on the facts.
| Approach | Who is generally involved | Who generally decides the outcome |
|---|---|---|
| Mediation | The two people, plus a neutral mediator | The two people, with the mediator helping structure the conversation |
| Negotiating through lawyers | The two people, each represented by their own lawyer | The two people, generally guided by their lawyers' advice |
| Going to court (trial) | The two people, generally represented by lawyers, and a judge | A judge, if the two people cannot reach their own agreement |
Why Full Financial Disclosure Matters Before Negotiating
Whichever path a negotiation takes, it generally depends on both people having an honest, complete picture of each other's income, assets, and debts. Without full financial disclosure, neither person can meaningfully evaluate whether a proposed settlement is actually fair, since important information may simply be missing from the conversation.
Do not sign a settlement without full financial disclosure and your own independent legal advice. Agreements reached without honest disclosure, or without each person getting independent legal advice before signing, are generally at greater risk of being challenged or set aside later. Getting your own advice before you sign anything binding is widely considered the safer approach. See Independent Legal Advice for a general explanation of what this typically involves.
What a Fair-Minded Approach Generally Looks Like
Negotiating a family law settlement does not need to mean adversarial or hostile. Many people find that a fair-minded approach — one focused on reasonable outcomes rather than "winning" every point — tends to produce agreements that both people can genuinely live with, and that hold up better over time.
In general terms, this often means being willing to share complete financial information rather than withholding it strategically, being realistic about what a court might actually decide rather than anchoring to an unrealistic position, and keeping any children's needs separate from unresolved issues between the adults. It also generally means recognizing that some compromise is a normal, expected part of reaching any negotiated agreement, rather than a sign that one side has lost.
It can also help to separate the emotional side of a separation from the practical questions being negotiated. Many people find it useful to focus each conversation, whether with a lawyer, a mediator, or their former partner directly, on the specific issue at hand — a parenting schedule, a support amount, how a particular asset will be divided — rather than revisiting the broader history of the relationship. This does not mean feelings do not matter; it simply reflects that a negotiation tends to move forward more productively when it stays anchored to concrete, resolvable questions.
Settlement Conferences: Negotiating Within the Court Process
Even once a family court case has started, the door to a negotiated settlement generally remains open. A settlement conference is a structured step in the Ontario family court process where a judge meets with both people, generally with their lawyers, to help identify what is actually in dispute and explore whether some or all of it can be resolved without a trial.
A settlement conference is generally less formal than a trial, and the judge involved typically does not decide the outcome the way a trial judge would — their role is generally to help the two people negotiate more productively. See our guide to settlement conferences for a fuller general explanation of how this step typically fits into a family court case.
Putting a Settlement in Writing
Once the general terms of a settlement have been worked out — whether through lawyers, direct negotiation, mediation, or a settlement conference — it generally needs to be put into a proper written document to be relied on going forward. Depending on the issues involved, this is often a separation agreement or a parenting-focused document. See our guide to separation agreements for a general look at what this typically involves.
As with any binding family law document, getting independent legal advice before signing is widely recommended, regardless of how amicable the negotiation felt. If a settlement is eventually questioned later, how it was reached — including whether both people had proper advice and full disclosure — can matter a great deal. See Challenging an Agreement for general background on this point.
Frequently Asked Questions
Do most family law cases actually settle before trial?
Yes, generally speaking, most family law matters in Ontario are resolved through some form of agreement rather than a full trial. Trials are generally reserved for situations where the two people cannot reach agreement on their own, through lawyers, or through the court's settlement process. See Why Most Family Law Matters Settle Rather Than Go to Trial above.
What are the main ways people generally negotiate a settlement?
People generally negotiate in a few overlapping ways: directly between themselves, through their own lawyers exchanging proposals, through mediation with a neutral third person, or within the family court process itself, such as at a settlement conference. Many cases involve more than one of these at different points. See The General Paths to a Negotiated Settlement above.
Do I need full financial disclosure before negotiating?
Generally, yes. A settlement reached without honest, complete financial disclosure from both people is at real risk of being challenged or set aside later, since neither person can meaningfully evaluate an offer without knowing the other person's full financial picture.
Can I negotiate directly with my former partner without lawyers?
Some people do negotiate directly, especially where things are relatively amicable, and then bring the outcome to their own lawyers to review before finalizing anything. Whether this approach makes sense depends heavily on the relationship and the issues involved, and it does not remove the general benefit of independent legal advice before signing.
What if my former partner will not negotiate reasonably?
This happens sometimes, and there is no single fix. Many people continue trying through their own lawyer, consider mediation, or move toward the family court process, where a settlement conference gives a judge the chance to help narrow the issues even if a full agreement is not reached.
Is negotiating a settlement the same as going to a settlement conference?
Not exactly. Negotiating a settlement can happen at any point, in or out of court. A settlement conference is a specific, structured step within a family court case where a judge helps the two people try to narrow or resolve their issues. See our guide on settlement conferences for a fuller general explanation.
Should I get independent legal advice before signing a settlement?
Yes, this is widely recommended regardless of how the settlement was reached. Independent legal advice generally helps confirm that you understand what you are agreeing to and that the agreement was reached fairly, which can matter a great deal if anyone later questions the agreement. See Why Full Financial Disclosure Matters Before Negotiating above.