November 1, 2021 marks the start of a new pilot project at the Ottawa Superior Court of Justice, Family Court Branch, called Binding Judicial Dispute Resolution (“JDR”). This pilot is meant to streamline the litigation system for families. It will allow litigating parties to opt into this process, providing a quicker, more cost-efficient way to resolve their disputes on a final basis.
While it is still in its early stages, there are a number of items we can expect:
- Binding JDR requires the consent of both parties. Self-represented parties can agree to this between themselves, or, if represented, between counsel.
- The process can be requested using a specific Request and Consent Form at or after a case conference has been held. A hearing date can be requested immediately, or once the parties are ready to proceed, such as after all relevant documents have been exchanged.
- If accepted into the Binding JDR process, the parties will appear in front of a judge, whose goal will be to discuss possible resolutions based on the parties’ respective proposals to resolve the issues and the key facts that support their positions and submissions.
- Parties are given the opportunity to agree to any and all terms at this stage and create a court order.
- If the parties cannot agree how to resolve any number of issues, the same judge who has discussed possible solutions with them will take on a proactive role and make a final decision for them.
- There will not be cross-examinations of parties, but instead the judge will make a decision based on affidavit evidence (for which there are specific guidelines), and the oral submissions of the parties on that day in court.
- The parties will receive explanations for the decision orally, followed by an endorsement. A detailed written reason for decision is unlikely.
- Binding JDR is meant to be used for less complex family law cases. This can mean cases with a limited number of issues or cases where the facts are agreed to and the parties simply need the court to apply the law to their facts. Examples of cases that may be suitable to Binding JDR may include finalizing terms of a parenting schedule, the determination of quantum of spousal support, or the determination of specific items in a net family property calculation.
- Examples of cases that may not be suitable for Binding JDR are ones that require third party witnesses, have credibility issues, or require cross-examination.
- The guideline for these cases is that the parties should feel that a court can fairly decide their case in a maximum 3-hour long court hearing.
- A judge may convert the case out of the Binding JDR hearing process back to the regular court process, if the judge feels it is necessary.
The court has provided extensive resources, templates and guidelines for the Binding JDR process. These can be found on the Ontario Courts website or on the specific court website.
The Binding JDR pilot project has been in effect in parts of the province since May 14, 2021, namely in the Simcoe, Muskoka and Cornwall Superior Court of Justice, Family Court Branch and in the Super Courts in the Northwest and Northeast regions.
The pilot will be evaluated after being in place for one year.