For at least the past 10 years, experts have selflessly conducted several studies concerning the manner in which family law disputes are presently being resolved. Each of these efforts have resulted in recommendations for significant change. Change is never easily obtained and never happens as soon as it should. In its report of April 2013, the Action Committee on Access to Justice recommended changes to substantive family law arguing that:

Statutes should not presume that disputes will end up in court in front of judges to be decided in hearings and trials. Our family law statutes should emphasize agreements and methods of reaching agreements. Statutes should encourage consensual dispute resolution. Court hearings and trials should be downplayed and treated as the residual “last resort” methods of dispute resolution that they are. The concepts and language of substantive family law provisions should reflect a less adversarial, more consensual approach. For matters involving children, for example, the language of “custody” and “access” should be replaced by the language of “parental responsibility”, “contact”, “time” and “schedules”.

Its recommendation:

Recommendation 29:
That Canadian family law statutes encourage consensual dispute resolution processes and agreements as the norm in family law, and that the language of substantive law be revised to reflect that orientation.

It’s interesting to note that more than six years passed before legislators decided to move forward on the recommended changes in the Divorce Act’s parenting language. This paper focuses on whether or not the new Act accomplishes the objective of encouraging consensual dispute resolution.  The changes do not come into effect until July 2020.

At the outset, it should be noted that the Justice Department paper describing the legislative background of the revisions to the Divorce Act outlined four key objectives:

• promoting children’s best interests
• addressing family violence
• helping to reduce poverty
• making Canada’s family justice system more accessible and efficient.

Only into the last objective can we potentially “read in” the objective of encouraging consensual dispute resolution.  Justice Canada did publish a 309 page document entitled “The Divorce Act  Changes Explained” which you can now review on the web at https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html. It sets out the changes, compares them to the past sections of the act and provides a rationale for each change. It is referred to in this paper as “the Commentary”.

The Sections of the Act which bear upon out of court dispute resolution are as follows in the order presented by the Act.

First in Section 2(1) we now have a definition of a “family dispute resolution process”. It means:

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

You will note that there is no specific reference to arbitration or mediation/arbitration. So we can’t be sure if those processes are included in that definition. Presumably they are because the reason for the change is expressed as follows:

The type and availability of dispute resolution processes varies considerably across Canada. In general, such processes are faster, less expensive and more effective ways to resolve disputes than court proceedings. The definition includes examples, but the term will apply to all such processes.

The definition is important because of the ramifications in other parts of the Act. In the Commentary, the change is referred to as being in the context of parenting orders and the duties of the parties and legal advisers. Section 7.1, however, noted below, clarifies that dispute resolution processes ought to be considered for all corollary relief issues.

The next important addition to our legal lexicon is the definition of “family justice services” which are:

public or private services intended to help persons deal with issues arising from separation or divorce

This relates to the duty of legal advisers. As the Commentary notes, the reason for the changes is:

There are many types of family justice services that are helpful to families in the context of separation or divorce. Services such as mediation and parent education can help family members cope with separation or divorce.

We now also have a change added by the definition of “legal adviser”:

legal adviser means any person who is qualified, in accordance with the law of a province, to represent or provide legal advice to another person in any proceeding under this Act

Section 7 of the current Act stipulates that a proceeding is to be heard by a Judge without a jury. The amendments add Section 7.1 which prescribes several duties on parties such as:

• to act in the best interests of a child,
• to shield children from conflict and
• to the extent it is appropriate, to try to resolve the matters which may be the subject of an order under this Act through a family dispute resolution process.

Unfortunately, it appears to be left to the parties or their lawyers to determine the extent to which “it is appropriate” to engage in out of court processes. No penalty is proscribed for those who don’t obey the duty but presumably an experienced family judge would devise some form of compulsory order for those who ignore the duty.

The most important Section in the revisions which promotes out of court processes is the duty imposed upon all “legal advisers” namely, the duty under the new sub-section 7.7 (2) which reads:

(2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act

(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;

(b) to inform the person of the family justice services known to the legal adviser that might assist the person

(i) in resolving the matters that may be the subject of an order under this Act, and

(ii) in complying with any order or decision made under this Act; and

(c) to inform the person of the parties’ duties under this Act.

Under the current Act, however, there already is a duty on every barrister who undertakes to act in a divorce proceeding to advise the client to negotiate a resolution and to use mediation services to do so as well.  We have no way of knowing if that duty has actually been observed and no way of monitoring whether the new provision will make any difference. The reason for the change is stated as follows:

In most cases, family dispute resolution processes tend to be faster, less expensive and more effective than court proceedings. They are also more likely to serve the interests of the child. A greater variety of such processes are available than ever before, including mediation, negotiation and collaborative law. The phrase “it would clearly not be appropriate” means that legal advisers do not have to encourage family dispute resolution in some situations, such as when family violence poses safety risks.

While family justice services vary across Canada, they can help the parties resolve issues related to divorce and separation, and help them comply with orders made under the Act. The Justice Canada website has information about public family justice services across the country. This can assist legal advisers in discharging their duty to inform clients about family justice services.

It is also important for legal advisers to inform their clients about the client’s duties under the Act. This will help ensure that the parties are aware of their obligations.

The obligations on legal advisers apply in all proceedings under the Act, including divorce, corollary relief and variation proceedings.

We can only hope that legal advisers will understand the duty and apply it appropriately. Sub-section 7.7(3) requires an amendment to our court forms compelling legal advisers to certify in writing that they have complied with their duty. This should raise the spectre of disciplinary proceedings for those lawyers and paralegals who fail to comply with their written certification.

The only other important section to consider on this topic is sub-section 16.1 (6) which empowers the court to direct the parties to attend a family dispute resolution process “subject to provincial law” – whatever that means as I know of no provincial law which regulates attendance at mediation. It may be that some provincial rules of court contain mandatory attendance at dispute resolution services at some stage of the proceeding. It is the practice of all mediators to ensure that the parties understand that mediation is always voluntary and can be terminated by either of the parties at any time. It will be interesting to see if Ontario judges will make any such directions and, if they do, how will they deal with a failed mediation? Will they ask for a mediator’s report on the session? This Section is contained in the parenting section so it seemingly can be ordered only where parenting is in issue.

The rest of the new provisions are all important changes promoting a different approach primarily to parenting issues but also to financial disclosure issues. It is imperative that all FDR professionals familiarize themselves with all the new changes as I believe they will positively affect the manner in which FDR professionals help their clients. Other scholarly papers have been written on these changes which I urge you to read as each of us needs to be able to impart this knowledge to our clients.^[1]

The overall changes will have I think a positive impact on the parenting plans with which we constantly struggle. The criteria for the determination of what is in a child’s best interests offers an excellent check list for the FDR clients. Hopefully the new terminology will also lessen the anxiety of our clients and therefore, make it somewhat easier to help them resolve parenting conflicts.

Unfortunately, the legislation still speaks of what “court orders” can be made and still makes the assumption that courts will be dealing with family disputes. It does not “downplay” the role of courts as suggested by the Action Committee nor does it “emphasize agreements and methods of reaching agreements”. Only time will tell if its imposition of duties on legal advisers will be sufficient to significantly change the culture of family dispute resolution which the Action Committee urged upon us. In short, in my opinion, in spite of its many attributes, the Act does not go far enough to make the adversarial model of dispute resolution “the process of last resort”.

Tom Dart is a lawyer, mediator and arbitrator in Barrie, Ontario. As a Mediator, Tom has assisted many mediation clients in resolving their disputes on a comprehensive basis – settling financial issues such as property division and support as well as parenting issues.  He actively promotes mediation as the means of resolving family law disputes with a non-adversarial approach.

[1] Example, Professor Nick Bala’s excellent paper – Bill C–78: Reforms to the Parenting Provisions of Canada’s Divorce Act, May 27, 2019.