When I speak to clients on their first call to our firm, each of them tells me they do not want to go to court, they all want to find a way to work out their issues with their partners. Historically, court has been the primary process that clients and their lawyers use to resolve their differences, despite the fact that 97% of cases are resolved by reaching an agreement without a trial. But the law is changing, and soon parties will be expected to attempt to resolve their differences using a Family Dispute Resolution (FDR) process before resorting to court. At Galbraith Family Law, we have always promoted FDR as the best solution for our clients, and now the courts agree with us!
Over the last 20 years or so, negotiation, mediation and collaborative law have gained recognition as effective “alternative” dispute resolution (ADR) processes. These processes address many clients’ greatest concerns about going to court: cost, stress, and loss of control. The court process is expensive, slow, confusing, rigid and the clients take a back seat to their lawyers. Frequently, as a bargaining strategy one side threatens to go to court to force the other side to concede to their demands. Decisions about your family should not be made just to avoid what can be an ineffective and destructive process.
Fortunately, proposed changes to the Divorce Act, the Children’s Law Reform Act and the Family Law Act are supporting the transition to family focused processes. The revised Divorce Act, which will come into effect in March 2021, formally recognizes FDR processes as better than court for families, with only a few exceptions.
In explaining the rationale for the changes to the Divorce Act, Justice Canada indicated that “in most cases, family dispute resolution processes tend to be faster, less expensive and more effective than court proceedings”, and that “a greater variety of such processes are available than ever before, including mediation, negotiation and collaborative law”. The only exceptions to proceeding to court would involve specific situations, “such as when family violence poses safety risks”. (DA s. 7.7(2))
The federal government also recognized that “in cases involving children, there are particular advantages to developing agreements through family dispute resolution processes. For example, children often benefit from seeing their parents work together. And dispute resolution processes, such as mediation, usually aim to keep parents focused on the best interests of their children. These processes also tend to improve the communication skills divorcing spouses will need for years to come to resolve issues related to their children”. (DA s. 7.3)
The Ontario government is responsible for the delivery of most family justice services. This year the government tabled Bill 207, Moving Ontario Family Law Forward Act, which will impact the various Acts respecting family law matters in the province. The bill received Royal Assent on November 20, 2020, and aligns in many respects with the changes to the Divorce Act, including the expectation that parties will try to resolve their issues through a family dispute resolution process. (CLRA s. 33.1). Legal advisers will be expected to discuss, inform and encourage their clients to use FDR processes, and will have to certify that they have done so before they can start a court action. (FLA 47.3(3))
Lawyers are anticipating that that there will be a sharp uptake on the part of judges asking for evidence that an FDR process has been attempted before they will hear arguments in court. This is good news for the majority of our clients who want to resolve their family issues without going to court, and supports the approach that Galbraith Family Law has always promoted.
By Sylvia Basso, Lawyer at Galbraith Family Law