There have been longstanding concerns that family law litigation can be a divisive experience that fosters conflict among parties. With changes to the Divorce Act, parties are now encouraged to resolve family law matters through alternative dispute resolution, reducing the likelihood of conflict. Family law cases can encompass diverse legal, financial, and emotional issues, at times making an adversarial process unsuited to resolving parenting or family issues. The Act contains new tools to encourage the settlement of issues and see that parents cooperate in the best interests of their children.
Divorce Act Aims to Reduce Conflict in Settling Family Disputes
Significant amendments to the Divorce Act came into effect on March 1, 2021. Among the new provisions was a focus on encouraging parents to resolve outstanding issues through family dispute resolution before resorting to the court. One of the amendments, now section 16.1(6), enables courts to make an order directing the parties to attend a family dispute resolution process. “Family dispute resolution process” is defined as “a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law”.
This new feature of the Divorce Act is a tool that courts can use to encourage parties to reach an agreement without having a judge impose a decision. However, courts recognize there are factors, such as the nature of the parenting dispute and stage of the proceeding, that weigh on the appropriateness of the section.
Orders for Dispute Resolution Cannot Be Used to Delay Final Determination
In K.M. v. J.R., the judge found that with a non-time-sensitive issue in an existing court application, it can be appropriate to require parents to participate in non-binding family dispute resolution. If the process does not result in a resolution, it can be returned to court. However, the Divorce Act does not enable a court to make a permanent final order requiring parties to resolve future issues through dispute resolution.
The utility of the new provision also depends, to some extent, on the parties properly participating in the dispute resolution process. Section 7.3 of the Divorce Act places a duty on parties to try to resolve matters through dispute resolution. Nevertheless, In K.M. v. J.R., Justice Pazaratz cautioned that orders under section 16.1(6) should not be used to delay a decision or “run the clock.” Where a party unreasonably stalls, the matter can be returned to court.
“Creativity and Compromise” Help Parents Avoid Contentious Litigation
The case of Leinwand v. Brown involved a motion by the husband to resolve a dispute over the child’s schooling plans. Justice Kraft explained that amendments to the Divorce Act modernized the language in the Act by using wording centred around parental responsibilities (i.e. “parenting time” and “decision-making responsibility” instead of “custody” and “divorce”). The objective of this was to help reduce parental conflict, which is ultimately in the best interests of children.
The parties in Leinwand had a history of successful mediation and had agreed to an equal time-shared parenting schedule. As the parties had previously agreed to participate in a dispute resolution process at the time they signed their separation agreement, the judge found that a court application was not what they had in mind. Because there was no urgency to have the court make an order about their child’s school placement, there was an opportunity for the parties to try to find a less divisive solution by entering into a family dispute resolution process. As the judge stated, with some creativity and compromise, the parents could try to negotiate an agreement for shared decision-making responsibilities and a parenting plan to match.
Reducing Conflict Through Alternative Dispute Resolution Serves Children’s Best Interests
The amendments to the Divorce Act were implemented with a view to reducing conflict, which is always in the child’s best interests. As the court in Leinwand described it, having parents reach decisions together is better than having courts impose a decision about their child.
Children are better when their parents cooperate and communicate and where conflict is minimized. When parents can create solutions to family disputes and craft their own parenting plans, they build the capacity to solve future disputes without the courts. As per Justice Kraft in Leinwand:
If parents, even those who have tremendous difficulty, can be part of the design of a parenting plan, they will no doubt be far more likely to follow the terms of the plan since they were invested in making up the terms and plan.
Collaborative Decision-Making Can Better Address a Family’s Needs
Decisions reached through alternative dispute resolution are more satisfactory to parties than results reached through litigation. Collaborative methods can be more efficient and make it easier for the participants to cooperate when resolving future disputes. Encouraging decision-making for family issues outside the adversarial court system may better reflect the range of legal, emotional, and diverse client issues within a family law file.
Dispute resolution processes, and particularly mediation, can respond to a wider range of client interests. This can be significant as parties may need to remain connected after their separation, either for co-parenting purposes or through spousal support obligations. As effectively stated by the Manitoba Court of Appeal in Dunford v. Birnboim:
… report after report has stated that the adversarial system is ill suited for divorcing couples who are seeking to reframe their familial relationships in a fair and prompt manner. It is ill suited for essentially two reasons. First, conflicts between spouses are not comparable to disputes between strangers…There are emotional, psychological and financial aspects that also need to be resolved. Second, unlike other types of disputes, marital disputes have an ongoing nature to them either because of spousal and/or child support issues or of continued parenting responsibilities.
Contact Boulby Weinberg LLP in Toronto for Effective Advocacy in Family Dispute Resolution
The lawyers at Boulby Weinberg LLP in Toronto focus exclusively on family law matters for clients in Ontario and internationally. We help clients reduce conflict whenever possible through customized dispute resolution strategies and assertively advocate for their rights in court when matters proceed to court. To discuss your family law matter, please complete our online questionnaire or call 647-494-0113 ext. 102.