Family Dispute Resolution Processes Encouraged by Court
Lawyers, clients, and self-represented litigants across the province continue to face delays in the Alberta court system following the pandemic. It appeared like the courthouse was buckling under the weight of too many files without enough resources prior to COVID-19. However, since the courthouse and much of the province shut down for a period in 2020, the wait times to access hearings and trials are even more substantial. People are being asked to wait up to 2 years before they have their day in court and this is not a reasonable or practical process for individuals going through divorce or separation.
Family matters often call for expedited resolution because people cannot put their lives on hold while litigating. For example, parents cannot hit pause while awaiting a trial to determine the best parenting schedule and decision-making authority for children. Additionally, family matters are unique because co-parents need to maintain a relationship after the litigation is over for the benefit of their children. Court can fuel acrimony as former partners are pitted against one another.
These are a few of the reasons why both the legislature and the court stress that family law cases should use the court as a last resort. New amendments to the Divorce Act came into effect in March 2021 that encourage family matters to be resolved through a “family dispute resolution process” (section 7.3). In fact, the Divorce Act goes further to place a duty of family lawyers to encourage their clients to solve issues through a family dispute resolution process, unless it would be clearly inappropriate to do so. A similar sentiment was echoed by the Ontario Court of Appeal in noting that “[s]eparating spouses are strongly encouraged to resolve their family law disputes either entirely outside of court of with limited resort to the courts” (Meloche v Meloche, 2021 ONCA 640).
There are a number of “family dispute resolution processes” that parties can consider to assist, including the following:
- Negotiation, with or without the assistance of counsel;
- Mediation;
- Mediation/Arbitration;
- Parenting coordination; or
- Court assisted mediation such as judicial dispute resolution (“JDR”) or early intervention case conferences.
There are many benefits to resolving family issues by agreement. Parents are in a much better position to understand their children’s needs and it assists the family moving forward if parents are cooperating. Additionally, it can be less expensive and much faster than going to court.
In short, considering options outside of court can ensure the parties maintain control of the process, have a say in the best solution for their family, and can lead to a timely resolution.