Ontario court pilot shows trend toward family dispute resolution: lawyer

The Ontario Superior Court of Justice’s binding judicial dispute resolution (JDR) pilot project, extended to the Family Court Branch in Ottawa on Nov. 1, demonstrates the shift toward alternate methods for resolving family law disputes, says an Ottawa lawyer.

“There is quite a bit of backlog in the court system right now, so where possible, people are being encouraged more than ever to turn to dispute resolution processes like mediation, collaborative family law, and arbitration,” says Olivia Koneval-Brown, who practises family law at Mann Lawyers LLP.

It will be interesting to see how the use of such dispute resolution processes will keep evolving in the area of family law in response to the pandemic, Koneval-Brown tells Canadian Lawyer.

Her colleagues at Mann Lawyers are continuing to follow the COVID-19-related developments in case law, including the legal questions of how vaccines for children will be handled and how income will be viewed for support purposes in situations where people lose their jobs as a result of not being vaccinated against the coronavirus.

Koneval-Brown says that, while the binding JDR pilot is currently only available in certain regions in Ontario, “the hope among lawyers is that it is here to stay, whether that’s in its current form or a tweaked form.”

The pilot project was implemented in the Simcoe, Muskoka and Cornwall Superior Court of Justice, Family Court Branch and in the Superior Courts in the Northwest and Northeast regions, as per the Superior Court’s practice advisory, effective May 14.

A post authored by Koneval-Brown on the website of Mann Lawyers listed what will be expected in the pilot’s early stages:

• The parties will not be subject to cross-examination because the judge will make a decision based on affidavit evidence, which entails specific guidelines, and based on the parties’ oral submissions.
• The parties will likely not receive a detailed written reason for the judge’s decision and will instead get the judge’s oral explanation for making that decision, followed by an endorsement.
• The judge may convert the case into a regular court proceeding rather than a binding JDR hearing if the judge considers it necessary.

The court’s use of binding JDR aims to help address the significant backlog among family cases due to the pandemic and to offer a quicker, cheaper, simpler, more streamlined and less formal way to finally resolve less complex family law disputes, in accordance with the objectives provided in subrules 2(2) to 2(5) of the Family Law Rules, O Reg 114/99, said the court’s practice advisory.

Binding JDR requires the consent of both parties, who should, during or after a case conference, complete and submit separate request and consent forms confirming that they understand and agree to use this process to reach a final resolution of their case. The parties can schedule their hearing, which will take place virtually via Zoom, at a time convenient to both of them after their request has been approved.

The binding JDR process involves a meeting between the judge and the parties, as well as their lawyers if they are not self-represented, for them to explore the possibilities for resolution. Each party will explain their proposal to resolve the outstanding issues and the key facts supporting their position.

The judge may ask questions, request additional information, and can hear anything deemed important and relevant to the issues, regardless of the formal rules of evidence. The judge will then give a final decision on all outstanding issues, including those resolved on consent.

Binding JDR is suitable for less complex cases where there are no witnesses other than the parties themselves, a limited number of issues and a substantial agreement between the parties regarding the facts. The following are examples of appropriate cases for this process:

• settlement of terms of a parenting plan schedule;
• reasonableness of and responsibility for special or extraordinary expenses under s. 7 of the Federal Child Support Guidelines, SOR/97-175;
• quantum or duration of spousal support;
• determination of specific items in a net family property calculation.

On the other hand, binding JDR is not suitable for cases where the necessary financial disclosure or other information has not yet been exchanged, where there are significant credibility issues that require cross-examination, or where the matter will require more than two to three hours of hearing time.

Participants are urged to answer an anonymous survey to help the court in its evaluation of the pilot after a year.