It goes without saying that Family Law is a unique area of the law. Generally, the parties are two individuals who were in an intimate relationship with one another for years who no longer get along and must now sort out their individual differences through the vehicle of the law. This is unlike criminal law which involves the individual against the “faceless” government. It is also unlike most areas of civil law which tend to involve the individual against a faceless company or two companies against one another. Seldom in these other areas of law do the parties have the sort of relationship history that makes the use of alternative dispute resolution (ADR) processes difficult.
Contrast this to family law where there are often interests at stake beyond the parties named in the action – namely, the interests of the children. Further, one’s history with their former spouse may have involved violence or abuse against them or their children.
Despite the tension between the use of ADR in cases involving family violence, Bills C-78 and 207 aim to address both of these issues in tandem. In this article we briefly outline the amendments that will come into effect next month to the Divorce Act and Children’s Law Reform Act (CLRA) with respect to these two topics.
Family Dispute Resolution Process to be Used in all “Appropriate” Cases
There is currently no mention of the term “family dispute resolution process” in either the Divorce Act or the CLRA. These are out of court processes aimed at resolving some or all of the matters in dispute, including negotiation, mediation, and collaborative law. The new section 7.3 of the Divorce Act will read “to the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.” The exact same language will be contained in section 33.1(3) of the CLRA which imposes this obligation only in relation to issues involving decision-making responsibility, parenting time, and contact orders.
Family lawyers should take note of the new positive duty on every legal adviser to encourage their client to resolve their matters through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would be “clearly not be appropriate to do so”. Lawyers will now have to certify that they have complied with this new duty in every document that formally commences a proceeding or that responds to a proceeding.[i]
It is important to recognize that these new sections create a qualified mandatory duty on parties and their legal advisers in family law proceedings. The language of the statutes is that the parties shall (not “may”) use a family dispute resolution process. However, they must do so only in appropriate cases. Rightly so, this recognizes that ADR is not appropriate in all cases, for example, where there has been a history of family violence or there is a significant power imbalance between the parties. However, the door remains open for parties to get into arguments over whether their case is an “appropriate” one for ADR, and there is likely to be some litigation over this issue in the future.
Another interesting provision that is buried in the new Divorce Act is section 16.1(6) which, subject to provincial laws, gives courts the authority to include in a parenting order a requirement that the parties attend a family dispute resolution process. For example, a court might order that for future disputes the parties attempt a form of family dispute resolution before bringing the matter to court.
Along with the clearer statutory tests for the best interests of the child and relocation, as well as the replacement of the terms “custody” and “access” described in our previous posts in this series, it is hoped that this addition to the Divorce Act and CLRA will contribute to a less adversarial culture in family law. ADR is a faster and usually less expensive means to resolve issues than litigation. It can also foster an environment early on that helps separating spouses to communicate effectively with one another, an especially important skill to have when there are children involved.
Mandatory Consideration of Family Violence when making Parenting Orders
There is currently no mention of the term “family violence” in the Divorce Act. In the CLRA family violence is to be considered when making an order for custody and access under section 24(4), but it is only mentioned in vague terms. Concern has long been expressed that family violence has primarily been understood as comprising only physical violence.
Bills C-78 and 207 change that. An identical definition of family violence will be contained in section 2(1) of the Divorce Act and section 18 of the CLRA. The conduct need not be criminal. Family violence means conduct toward a family member that is violent or threatening, forms a pattern of coercive and controlling behavior, or causes a family member to fear for their safety or the safety of another person. The term is broadly defined to include such things as physical, sexual, psychological and financial abuse; harassment and stalking; failure to provide the necessaries of life; threats to kill or cause bodily harm to a person; and threats to kill or cause harm to an animal or the damaging of property. In the case of a child, family violence includes both direct and indirect exposure to such conduct. Importantly, these amendments make it clear that family violence manifests in a wide variety of forms which must now be taken into account when considering the impact on the best interest of a child.
Specifically, when making a parenting order under section 16(3) of the Divorce Act or section 24(3) of the CLRA, the Court shall consider the impact of family violence on a parent’s ability to care for and meet the needs of the child as well and whether making an order that would require cooperation from a parent who has engaged in family violence is appropriate. Sections 16(4) and 24(4) then contain an identical list of factors to be taken into account in situations where family violence was present in addition to the general list of factors to be considered when determining the best interests of the child.
The new mandatory consideration of family violence and the qualified mandatory obligation for parties to attempt an ADR process in family law proceedings are welcome additions. While there is some concern about parties arguing over why their case is or is not “appropriate” for ADR and how courts will interpret this term, the general requirement for parties to attempt an ADR process will no doubt result in a greater number of cases resolving more quickly, less expensively, and less acrimoniously. The new definition of family violence is also long awaited and will provide enhanced protection for vulnerable spouses and children.
[i] See section 7.7(2) and (3) of the Divorce Act and section 33.2(2) of the Children’s Law Reform Act.