The family law system in Canada has often been described as broken. Specifically, the Family Court in Ottawa, and in other parts of Ontario, is facing a crisis. Unfortunately, this has been the case for quite some time. In 1999, the Family Court of the Superior Court of Justice was expanded to include Ottawa. The common goal was to promote the non-adversarial resolution of family disputes. Despite tremendous efforts by the legal community, the progress made was insufficient to counterbalance the backlogs and the system’s inability to provide families with accessible services.
Prior to COVID, families needing judicial intervention were already facing significant challenges when it came to delays, cost of representation, and overall accessibility. What the COVID pandemic did was two-fold. On the first hand, families were isolated in their homes, with stressors amplified such as school closures, job loss, and loss of community contact. On the second hand, courts were closed, and the entire judicial system was sent into a frenzy. Exceptions were made for urgent cases involving child abductions, restraining orders, and child abuse. That left unresolved issues, such as child support, parenting schedules, and matrimonial home disputes.
The message received from the bench was for families to work together, access mediation or arbitration, and only resort to Court for urgent matters. Not an easy task for families amid separation, but it was a message that was a long time coming and somewhat refreshing to hear. Without officially saying it, alternative dispute resolution processes became part of the litigation process, something many of us in the legal community have advocated for. Although the circumstances during COVID were incredibly challenging, families and family lawyers were compelled to turn to alternative dispute resolution processes, like mediation, arbitration, and collaborative family law. Many families were able to see a final resolution to the separation within months of starting mediation, which may have taken over a year to resolve in Court.
Mandatory Mediation in Family Law
Mediation and other alternative resolution processes are strongly encouraged both by the legislature and judges. However, mediation is not officially mandatory for family law in Ontario, unless it is required by a domestic contract (like a marriage contract or separation agreement). Even though mediation is not officially mandatory, you should not be surprised when a judge tells you and your ex-partner to go and try harder to resolve the issues before coming back, which raises the question of whether mediation is mandatory. In Ontario, this is currently a grey zone.
Ontario’s Family Law Act allows a judge, on an Application, to make an order that parties must attend mediation with a mutually selected mediator. The Children’s Law Reform Act contains a similar provision. The order is contingent on the parties agreeing to a mediator. In the Family Law Rules, the legislature has created an incentive for mediation by allowing parties that have attended a mediation before the court proceeding to combine the case conference and settlement conference into one hearing instead of two. This decision can be made on a motion by a party or by the judge’s initiative. Thus, even if the mediation did not work, it may save you time and costs. The Divorce Act also encourages mediation by legislating that it is the duty of the parties to attempt to resolve any disputes, to the extent it is reasonable, with a family dispute resolution process. The Act also states that any legal representative (like a lawyer) has a duty to encourage parties to attempt dispute resolution, if appropriate in the circumstances.
Despite the clear signals from the bench and legislature that family dispute resolution is a step that should be taken, they have yet to go so far as to make it mandatory. This shifts the burden on the parties and lawyers to seek mediation independently.
Mandatory mediation has proven to be successful in other spheres and jurisdictions. For example, in Ontario, civil cases, as well as some estate matters, have mandatory mediation as part of the court process. The mediation requirements have successfully settled cases early in the litigation process.
The long-standing debate over mandatory meditation in a family law proceeding centers on power imbalances. Marriage breakdown, specifically emotional and physical abuse can negatively affect the ability of parties to negotiate, work together and reach a reasonable compromise. This is a serious concern that is not to be dismissed. However, proceeding in court does less to address these concerns than mediation would. Mediators undergo extensive training to recognize power imbalances, are trained in dealing with interpersonal violence, can conduct intakes, and tailor the process to protect vulnerable parties, when possible. While a trial may not require compromise, it is often a far more traumatizing and invasive experience for vulnerable parties.
One solution to this concern would be an opt-out option. Instead of encouraging parties to opt-in to mediation, mediation should be mandatory with an option for parties to opt-out if the circumstances are such that mediation or dispute resolution is not appropriate.
Change is Coming
Tides are changing in the world of family law. In July 2022, Saskatchewan mandated that all family matters are required to attempt a family dispute resolution process by the close of pleadings before they may continue with any further court proceedings. Parties can apply for exemptions in circumstances such as interpersonal violence, child abduction, or other urgent matters. In British Colombia, you can issue a notice to mediate, which effectively requires both of the parties to attend mediation unless there is a protection order in place, the mediator finds that mediation is inappropriate, or either party is relieved of the requirement to attend mediation by a court order.
Mediation at the early stages of a separation matter will allow parties to work with a trained professional to resolve their disputes or at least narrow the issues that need to be resolved in court. In turn, this will allow more time and court resources to be spent on the cases that truly need court intervention, thus increasing access to justice for families at all ends of the spectrum.