Family mediation in Ontario almost always ends with the same document: a Memorandum of Understanding, or MOU. It’s the bridge between what was agreed to in the room and the legally binding separation agreement that comes later.
Getting the MOU right is one of a mediator’s most important responsibilities. If you’re just starting out, it’s good to be aware of helpful tips and potential pitfalls.
Read on to learn more about what belongs in a family MOU, how the open vs. closed distinction shapes what you write, and where new mediators tend to run into trouble.
IN THIS POST
- What an MOU Means in Ontario Family Mediation
- Open vs. Closed Mediation: Why it Matters for Your MOU
- What to Include in a Family Mediation MOU in Ontario
- Tips for Drafting a Clear, Effective MOU
- Common Pitfalls to Avoid
- FAQs
WHAT AN MOU MEANS IN ONTARIO FAMILY MEDIATION
An MOU is a written summary of what both parties agreed to during mediation. It typically covers parenting time, decision-making responsibility, child support, spousal support, and property division.
On its own, an MOU isn’t legally binding. Instead, it becomes the foundation each party’s lawyer uses to draft a formal separation agreement.
“An MOU in the context of mediation is not a binding contract,” says Mary Joseph. She is a retired lawyer and current certified family mediator with the Ontario Association for Family Mediation.
“I use the word ‘report’. Because that’s really all it is, a report on what comes out of a mediation. The term ‘MOU’ has caused confusion in the past for clients. So I just use ‘report’ to make sure it’s absolutely clear that it’s not binding.”
OPEN VS. CLOSED MEDIATION: WHY IT MATTERS FOR YOUR MOU
Before you draft anything, you need to know which format you’re working in, because it changes how much detail belongs in the document.
Closed mediation is the default in Ontario. Mediation stays confidential unless both parties agree otherwise. In closed mediation, your summary should only set out the agreements the parties reached. It shouldn’t touch on the underlying discussion, positions, or anything said along the way.
Open mediation is far less common. It tends to come up in more contentious parenting disputes, where both parties specifically agree the mediator can disclose certain information if they can’t reach a settlement. In this format, the summary can go a bit further. It may include a brief overview of each party’s position and the unresolved issues, though it still won’t get into the specifics of what was said in session.
“One of the biggest mistakes new mediators make is not understanding the difference between closed and open mediation,” says Mary. “In closed mediation, you list only what the parties agreed to; you don’t add any narrative. In an open mediation, the report will include a narrative of how they got to agreements. It will also include what they did not agree on.”
WHAT TO INCLUDE IN A FAMILY MEDIATION MOU IN ONTARIO
A good MOU doesn’t have to be long, but it does need to be clear. At a minimum, it should include:
- The names and roles of both parties
- The court number, if the matter is currently before the courts
- The key issues addressed, such as parenting time, decision making, child support, spousal support, and property division
- A clear statement that the document isn’t binding
- Confirmation that both parties reviewed the document before moving on to legal counsel
Mary says the MOU should include everything that was agreed upon in the mediation. “I divide the issues into categories. First, list the names of the children and their dates of birth. Then go into decision-making responsibility. Specify if the parents are going to share decision-making or if one person will have the final say regarding issues like health, education, religion, and cultural language,” she explains.
“If the parties are married, ensure that the date of marriage and the separation date are listed. If there are child or spousal support payments, make sure that the income figures that the payments are based on are listed. So for instance, the report might say that the child support amount is based on the table amount of the child support guidelines based on two children, whose principal residence is with whatever party, and list the parties’ income.”
TIPS FOR DRAFTING A CLEAR, EFFECTIVE MOU
Use plain language. Avoid legal jargon. The parties involved should be able to read and understand the document easily.
Be specific. Vague phrases like “make a reasonable effort” sound fine in the moment. But they can cause disagreements down the road, since everyone defines “reasonable” differently.
Confirm understanding before finalizing. Read the MOU aloud with both parties present. Ask if anything feels unclear or if it truly reflects what they agreed to.
Keep it concise. A shorter MOU is easier to reference later. Nobody wants to dig through pages of text to remember what they signed up for.
COMMON PITFALLS TO AVOID
Even experienced mediators can run into trouble with MOUs. Here are a few mistakes worth watching for.
Confusing an MOU with a contract. These are two different tools. You need to make sure everyone understands that an MOU is not legally binding.
Using outdated language. Watch out for older templates that contain outdated terms. Replace “custody” with “decision-making responsibility” and “access” with “parenting time.”
Skipping the review step. Every party should read and understand the full MOU. Don’t rush this part just because the session is running long.
FREQUENTLY ASKED QUESTIONS
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