A new dispute resolution process, known as Judicial Dispute Resolution (hereinafter referred to as ‘JDR’), has emerged as a pilot program in several Ontario jurisdictions. This process, aimed at streamlining the determination of certain narrow issues, has already shown limited success in the
jurisdictions that have employed it. The case of M.D. v. C.S. appears to represent the first Endorsement of a JDR process in Ontario, though it may not be long before more begin to emerge.
The parties, M and C, were the parents of an eight-year-old child called Alex. The parties have been separated for over six years, but there still remained conflict between them. Despite said conflict, the parties were still able to develop a regular parenting routine for Alex.
Entering the JDR process, a focused set of issues was determined, specifically narrow parenting issues that could not be ironed out between the parties in prior settlement negotiations. The specific issues addressed in the JDR process included transition times for the regular parenting schedule, how to articulate major decisions with their related section 7 expenditures, how to allocate equal vacation time, travelling with Alex, logistics for parenting exchanges, whether both parents could attend Alex’s extra-
curriculars and the safekeeping of Alex’s personal documents.
Justice Madsen informed the parties that she would be guided by a number of considerations, derived from considering Alex’s best interests as required under the Children’s Law Reform Act, namely;
- Minimizing Alex’s exposure to conflict;
- Consistency and routine for Alex;
- Consideration for Alex’s age and stage of development;
- Consideration of the status quo (current arrangements);
- Simplicity in implementation (which would help reduce conflict); and
- Ensuring consistency of school attendance.
In her initial overview of the JDR process, Justice Madsen explained that it was designed as a simpler, faster and more cost-effective alternative to proceeding to a trial. While the process is only being offered as a pilot program in some jurisdictions, it has received repeated votes of approval by those who have chose to participate.
The process is voluntary by the parties and is meant to be more interactive and less adversarial than a trial. The parties have the benefit of conferring with the presiding judge, hearing the judge’s views on their respective positions, and should they still remain apart after attempting to negotiate a settlement, the judge may make a binding decision on the remaining issues.
JDR is not meant to address complex issues plaguing the parties, nor is it meant for circumstances where credibility may be an issue or disclosure remains outstanding. Parties must commit to keeping their financial disclosure up-to-date, agree to provide a comprehensive settlement proposal to be used during the process, waive the right to the strict application of the rules of evidence, as well as agree and request the same judge preside over both the settlement and binding decision portions of the process.
The judge, in their role in guiding the process or making an ultimate determination, can ask questions of the parties and their respective positions, allow for the parties to present their oral arguments, and may even receive critical questions from each side for the other as an alternative to a formal cross- examination.
In the case at bar, the majority of the parties’ issues were able to be addressed in the initial negotiation phase between the parties and with the aid of her Honor. The three issues remaining that required a binding determination were the specific language to be used for major decision-making and its impact on contributions to section 7 expenses, where exchanges were to take place, and whether both parties could attend Alex’s extra-curricular activities.
In arriving at her decisions on each of the above issues, Justice Madsen cited the guiding principles she had identified earlier, specifically the reduction of potential conflict in Alex’s presence. In trying to minimize the risk of conflict, Justice Madsen held that exchanges should take place in a neutral location where possible, and if either party requested, exchanges would take place at a neutral Tim Hortons.
Justice Madsen further ordered that both parents would only be allowed to attend Alex’s extra- curricular activities if the scheduling parent invited the other, minimizing any potential conflict.
Justice Madsen credited both parties in their efforts to reach an amicable solution and prioritize Alex’s best interests. The JDR process is not meant for every family, nor can it address the many complex issues that can arise in many family law cases. Only if parties have already narrowed the issues, exchanged adequate disclosure, and are ready to approach the process with a truly settlement oriented mindset can the process truly maximize its potential. While JDR is not available in every jurisdiction, its preliminary success in the jurisdictions that have implemented it bodes well for its future role in the family law landscape.