05 Jul Family Law Mediation A Preferred Dispute Resolution Process
Over the past years, mediation has been brought into the mainstream of dispute resolution in Canada. All levels of government are now using mediated processes to resolve a variety of different types of conflict.
The rapid growth of the mediation processes, coupled with the fact that conflict will not cease to exist, has led to a great deal of interest in mediation and its application.
The Federal Government created the Divorce Act 1986 and since that time, Family Law as we know it has evolved and the Divorce Act has now been amended to reflect the current trends and recommendations made by a multitude of academics and experts in the field. The amendments to the Divorce Act came into effect on March 1, 2021. Pursuant to the said amendments, parties to a family law dispute will have a new obligation to try to resolve matters out of court.
Other changes that are coming into affect, and that at first glance may seem minor, are meant to change the mindset of newly separated couples when dealing with parenting roles and time with children, post separation. The amendments to the Divorce Act will replace the terms “custody” and “access” with terminology focused on parents’ responsibilities for their children. Family law academics have written that this change in terminology supports children’s best interests by helping to reduce parental conflict. The Courts have witnessed countless legal battles stemming from the use of words (correctly or not) such as custody and access.
Everybody leads busy lives simply trying to make ends meet to provide for their family and their increasing financial needs. The amendments focus on providing access to justice to all Canadians and access to family justice is a key part of the priorities set by the federal government in amending the Divorce Act. As any party to a family law litigation can attest, the costs incurred, the delays encountered, and the complex procedures can all create barriers to accessing the family justice system.
The Divorce Act amendments include changes to promote access to justice in both official languages and to promote the use of a wider range of services to facilitate family dispute resolution.
The current financial reality in family law matters is that more and more Canadians need to resolve their family law disputes without the assistance of a lawyer. For many separating and divorcing families, it is less expensive and less time-consuming to resolve issues by agreement than through court proceedings. Also, in out-of-court dispute resolution, parties often retain more control over decisions about their lives. In cases involving children, there are particular advantages to reaching an agreement through a non-adversarial process; for example, when children see their parents work together.
The Divorce Act amendments create duties to encourage the use of “family dispute resolution processes” which include a range of options such as out of Court negotiation and mediation. The legislation also sets out a new obligation for lawyers to inform their clients of any family justice services that may be of assistance to them.
Although dispute resolution processes such as mediation may be preferable in some cases, they may not always be appropriate, as may be the case if there has been family violence or a significant power imbalance. As a result, the requirement to engage in dispute resolution processes is not absolute and will be required only “to the extent that it is appropriate to do so.”