The parties in this case were married in August of 2015 and separated in March of 2019 when their son was just six months old. The parties attended mediation and were able to resolve many of their issues, subject to a review in September 2020. On December 22, 2020, the husband brought an Application to request relief with respect to parenting and financial matters. After a case conference, the parties were able to arrive at a shared parenting schedule and agreed to share the Jewish holidays. The husband requested leave to bring a motion regarding the child’s future schooling plans. Aside from the residency schedule, there was no parenting plan in place and the parties were under the impression they had de facto joint decision-making authority. The husband submits that he would like the child to proceed from nursery school to a public school and attend a Jewish school on Sundays beginning in September of 2022. The wife submits that the child should attend a Jewish day school, which the wife’s parents would assist in paying for. The wife argued that the court should not decide this issue because the parties had not engaged in family dispute resolution process, as was included in the agreement reached with the mediator.
On March 1, 2021, the Divorce Act encountered significant changes which modernized the language of the Act to provide terminology which now focuses on reducing conflict and gives a more child-focused approach to terms such as “parenting time” and “decision-making responsibility.” Judge Kraft noted that these changes are very welcome to family courts and hoped that this assists in reducing conflict for the best interests of the children involved in family law cases. In reference to this matter, the changes now allow for the courts to make an order which directs the parties to a family dispute resolution process pursuant to section 16.1(6) of the Divorce Act. The definition for “family dispute resolution process” is set out in the act as follows:
a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law
The court noted that in this case, the parties had a history of being able to reach agreements in relation to matters which concerned their son and were able to reach a parenting agreement with the mediator. The Judge submits that although the court is a dispute resolution process which assists those who require it, the parties should have chosen a different avenue for their first resort to resolve the issue. Since there was no urgency in this matter, as the school year in question did not commence until September of 2022, the court explained that there was an opportunity here for a dispute resolution process which could encompass the compromise and creativity she believed the Divorce Act changes promote. In circumstances where there is not a time-sensitive issue, section 16.1(6) is a new and useful tool for parents which protects children from conflict and promotes their best interests. Therefore, Judge Kraft did not rule on this issue and instead ordered that the parties make immediate arrangements to attend a family resolution process.
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