Sweeping changes to family law legislation, and renewed emphasis on family mediation

March 1, 2021, marked a very important day in family law across Canada. It saw the implementation of extensive amendments to the Divorce Act and, importantly for Ontario, to the Children’s Law Reform Act.  The changes include, for example, new terminology for parenting - with the old, value-laden terms of “custody” and “access” being replaced with more modern and value-neutral terms of “decision-making responsibility” and “parenting time”. We also have new language and rules around relocation, also known as mobility. The amended legislation places a renewed emphasis on compliance with court orders. Vitally, the toxic impact of family violence on families is further recognized, and the definition of the term expanded. The list of changes I have provided in this paragraph is by no means exhaustive.

My focus in this post is on family mediation as a possible method of resolving family law disputes, and the amended legislation’s very deliberate and pointed focus on family dispute resolution (FDR) processes as an alternative to court.

 The relevant sections of both the Divorce Act and the Children’s Law Reform Act now use the word “shall” to impose a duty on all litigants to try negotiation, mediation or collaborative law to resolve their dispute(s). Both of these sections include the necessary caveat that these processes must be employed only where appropriate to do so – this is a reference to situation where domestic violence or a power imbalance make mediation, for example, inappropriate (without, where possible, very specific safeguards being put in place).

The practical effect of these new sections and their language is that family judges, family lawyers and parties to a family court proceeding will be expected to actively consider mediation as a viable alternative to the court process. More than that, they “shall” attempt an FDR process – the word of the legislation is deliberately directive.

 While Ontario's family court judges have always been active proponents of family mediation, we now have very specific language in the legislation which obligates judges and lawyers to speak to litigants about this option.  As a family mediator myself, I have long believed in the promise of family mediation – its ability to empower parents, for example, to actively participate in decisions being made about their children, to design their futures, through open, moderated dialogue and the principle of self-determination. Family mediation is an option for all family law issues, and in addition to parenting, these include support and property issues as well.

 I am very, very pleased to hear that more Ontarians will now learn more about family mediation, and hopefully use it, with the assistance of the legislation’s directive and forward-looking language.

©AJJakubowska