The Americas / Canadian Divorce Act Amendments Put Focus on ADR
A new focus on family mediation and collaborative law is being welcomed by Canadian lawyers, although some women’s groups and others worry about access and potential pitfalls for vulnerable spouses and children.
Under amendments to Canada’s Divorce Act that have just received Royal Assent, divorce lawyers have new obligations to promote mediation and collaborative law, and judges have new jurisdiction to direct parties to mediation.
Beyond their longstanding obligation to advise clients about reconciliation, these amendments require legal advisors to inform clients and encourage them to use public and private services and out-of-court processes for resolving family issues.
For the first time, the Act also defines “family violence.” It is broadly framed to include not only physical and sexual abuse, but also psychological and financial abuse; forced confinement; and threats to harm an animal or damage property.
Given the large number of self-represented litigants—57% in Ontario, Canada’s most populous province—and their difficulty in navigating the court system, the ability to direct litigants to alternate dispute resolution is a welcome change to the Divorce Act. At the same time, mediation can be expensive and is not available in all of Canada’s far-flung communities.
On the other hand, most family law disputes can and should settle. A trial provides only a “point in time” resolution: as children grow, spouses re-partner, and a family’s financial situation changes, a trial judgment can quickly become obsolete. Repeated returns to court for adjustments are far from ideal, so the new focus on mediation and collaborative dispute resolution is appropriate.
Most organizations dealing with separation and divorce welcome these Divorce Act amendments but how the most vulnerable spouses and children will fare remains to be seen. As many pointed out in hearings leading to the passage of the amendments, judges will not always be aware of family violence or power imbalances that make some cases unsuitable for mediation, and family mediators, with no national standards, may not be trained in family violence screening. Women’s groups have argued that an abused or weaker spouse will feel compelled to accept the stronger spouse’s settlement terms, leading to a further feminization of poverty after separation.
-Laurie H. Pawlitza,
Partner, Torkin Manes LLP,
Toronto, Ontario, Canada