Divorce Act Promotes Collaborative Law and Mediation:

By Jennifer Black

There has been a trend towards resolving issues in a separation, which may include property division, spousal support, parenting issues and child support through a family dispute resolution process such as collaborative process, mediation, or negotiation rather than through the courts. The move in this direction has been for good reason, as it is generally more efficient and less expensive to resolve issues through a family dispute resolution process, as opposed to a court proceeding. In cases which involve children it becomes even more advantageous to use a family dispute resolution process as children can benefit from their parents working together with the assistance of professionals to resolve matters. These family dispute resolution processes also tend to focus on improving parents’ communication, with a strong focus on what is in the child’s best interests. 

The Divorce Act amendments which came into effect on March 1, 2021 provide, at section 7.3, an obligation on parties to deal with disagreements through a family dispute resolution process. In addition, section 7.7(2) of the Divorce Act now provides a stronger duty on lawyers to encourage a client to resolve matters through a family dispute resolution process, to inform their clients of services available in the community, and a duty to inform their client of the client’s own respective duty under the Divorce Act to deal with conflict through a family dispute resolution process. 

Collaborative professionals and mediators have specific training in conflict resolution and resolving matters without the need for court. In the past, there has been an assumption that high conflict cases or cases where there are power imbalances can only be resolved by the courts. However, a collaborative process can often provide additional supports in high conflict matters using a neutral family professional that a court process may not offer. Matters can often be dealt with much quicker in a collaborative process, provide an ability to diffuse conflict as it arises. With court proceedings there are often major delays that have only been exacerbated by the pandemic.

From the outset the court process fuels conflict by the very nature of a party needing to file pleadings or affidavits, which can often be inflammatory and present a negative view of the other party to the proceeding. Finally, there is recognition in the Divorce Act that priority should be given to resolving matters outside of court whenever possible through a family dispute resolution process such as collaborative or mediation.

There will always be a place for the courts as some matters, by their nature, may be inappropriate for a family dispute resolution process. However, the changes to the Divorce Act illustrate that court should be the exception rather than the rule for resolving issues of a separation.