One of the most commonly used Alternative Dispute Resolution (ADR) processes in family law is Mediation. This process consists of a neutral third party (who is not a judge within the Court) that makes a recommendation about the legal issues presented by the parties. The Mediator’s decision regarding the issues is non-binding (also known as “without prejudice”) on the parties unless both parties are agreeable to the settlement terms. The Mediator’s objective is to facilitate negotiation and constructive settlement between the parties. Had Jon and Kate used Mediation for their matrimonial matter in Ontario the following is plausible.

First off, the couple would have to be both agreeable in using Mediation as an alternative to using the Court route. Mediation can be employed during early negotiations between the parties or post-court proceedings to resolve remaining issues. In the Gosselin case, they used Mediation to resolve their remaining legal issues like determining the primary caregiver. The benefit of using Mediation in the Gosselin situation is that it deters acrimony between the parties. Mediation allows for parties to foster future communication because it dispels the lingering feeling of “remembering that day in court”. For the Gosselin family this is especially important when the parents have children, let alone 8 children. Hence, fostering an ongoing healthy relationship between the parents is important for the best interests of the children.

In comparison to the court system, Mediation does not necessarily form an outcome of successful party versus unsuccessful party. At the end of the day, concessions are made by both parties, and they leave with a better understanding of why and how the other party feels. This process is beneficial for Kate and Jon given all the news coverage and media hype regarding their life and how easily their relationship and feelings towards each other can be misinterpreted. Another reason Mediation is ideal in this couple’s situation is that there is no obvious power imbalance. For instance, if one of the parties were a victim of domestic violence, Mediation may not be a useful process because the abusive party may exercise undue influence on the abused party because there is a clear power imbalance. In the Gosselin case, although both parties encountered a messy separation, they both had the ability to make autonomous decisions regarding their matrimonial matter. It is commendable that such celebrities are exploring alternatives in dealing with their matrimonial matter.

The Money Battle

The couple agreed to settle their matrimonial dispute through arbitration to avoid the publicity of a trial. Unfortunately, the Gosselins have been unsuccessful in avoiding court. In early October of 2009, Kate applied to the courts to force Jon to return a large amount of money that he took from their joint account.

According to Kate, Jon removed $232,000.00 from the couple’s joint account in direct violation of the arbitrator’s orders. The court ordered Jon to return $180,000.00 to their joint account. Jon claims to have spent the remaining $52,000.00 on household expenses. Jon has until October 26, 2009 to put the $180,000.00 back into the joint account and the judge ordered both parties to provide the court with documentation regarding their household expenses.

The Ontario courts would likely approve of the judge’s decision to order the money’s return until the arbitrator can make a final determination. This will help ensure that Jon does not spend the money before this issue can be decided on a more permanent basis. Another option is for the court to order that the $180,000.00 be held in trust by the court until a full determination regarding this money is made.

The Birthday Battle

Kate was looking forward to baking a cake for Cara and Mady’s birthday on October 8, 2009 and, according to Jon, she was also looking forward to preventing Jon from seeing the twins on their birthday for more than two hours. Jon response: “She’s trying to prevent me from seeing my kids on Mady and Cara’s birthday…That’s like giving her full custody by obeying her. She can’t tell me what to do. I’m not going to allow it. I’m just going to stay. I own the house so I can do what I want.”

Although Ontario courts would likely disagree with Jon’s tone in this statement, according to family law in Ontario, he’s right.

In Ontario, the status quo has a huge impact on determinations of custody and access. Although missing a few hours of one birthday party is unlikely to make much of a difference in terms of custody and access orders, if Jon spends much less time with the children than Kate does, the children will be more likely to primarily reside with her. If Jon spends less than 40% of the time with the children, he will be responsible for making child support payments to Kate, but she will have no obligation to make child supports payments to him. It is likely that Kate will be making far more than money than Jon in the future because he is no longer part of the show. Kate’s new show, Kate Plus Eight, is scheduled to start on November 2, 2009. So, if Kate lived in Ontario, it would be very important to her to spend as much time with the children as possible, not just because she loves them and it takes a lot of time to take care of eight children, but also because she would likely have to pay Jon a large amount of money in child support otherwise.

Jon is also correct in stating that he can stay in his house as long as he likes. In Ontario, both parents have an equal right to possession of the Matrimonial Home, regardless of whose name is on title. This means that neither Jon nor Kate can legally refuse the other entry to the home, unless an Order for Exclusive Possession has been made. An Order of Exclusive Possession grants full rights of possession of the Home to one parent and denies the other parent entry to the Home.

The factors that the courts consider when deciding whether to award one spouse exclusive possession of the Matrimonial home include (a) the best interests of the children; (b) any orders made, (c) the financial position of the parties, (d) any written agreement between the parties, (e) the availability of other accommodation, and (f) any violence committed by one party against the other or against the children.

Although Jon should not have any problems finding alternative accommodation if he were excluded from the Matrimonial Home, it is unlikely that Kate would be granted exclusive possession because there are no allegations of violence, the parties had previously agreed that they would both attend the Matrimonial Home to care for the children, and it is highly unlikely that a judge would decide that it is in the children’s best interest not to see their father on their birthday.