Anyone who is currently involved in family law litigation knows that the court system is experiencing a significant backlog, which has been exacerbated by the pandemic. With long wait times, now more than ever, family law litigants are being encouraged to look to alternative forms of dispute resolution – like mediation, collaborative family law, and arbitration – to resolve disputes related to property division, spousal support, child support, and parenting.
To help streamline the family law litigation, some Ontario courts are experimenting with another alternative to the traditional litigation process called: Binding Judicial Dispute Resolution. This pilot project is intended to provide family law litigants with a quicker, more cost-efficient option for resolving their family law disputes on a final basis.
The pilot project, which first launched on May 14, 2021, was initially only available to family law litigants with cases in the Superior Court of Justice, Family Court Branch in Simcoe, Muskoka, and Cornwall and in the Superior Courts in the Northwest and Northeast regions of Ontario. Recently, November 1, 2021, the pilot was expanded to include family law cases in the Ottawa Superior Court of Justice, Family Court Branch.
Binding Judicial Dispute Resolution is not currently available in Toronto or surrounding regions, however, there is a chance that it could become an option in the future.
One of the first steps in the traditional family law litigation process – after each party files their initial materials – is for the parties and their lawyers to meet with a judge for a case conference. The case conference is an opportunity for the parties to speak with a judge about the progress of their case and to discuss ways to resolve all or some of the issues in dispute.
After the initial case conference, the parties will attend a settlement conference to further attempt to resolve the issues. If it is unlikely that the parties will resolve their dispute, a trial management conference will be scheduled and the case will proceed to trial where a final decision will be made. It can take years to reach a final decision and it will often end up costing both parties thousands of dollars in legal fees.
Under Rule 17(24) of the Ontario Family Law Rules a judge who assists the parties in trying to resolve their issues at a settlement conference cannot be the judge to make a final decision on the issues at trial. This is not the case in Binding Judicial Dispute Resolution where the parties opt to have the same judge who is attempting to help them reach a resolution on consent make a final decision on all outstanding issues if the parties cannot come to an agreement themselves.
In Binding Judicial Dispute Resolution, the judge meets with the parties and their lawyers to explore the possibilities for reaching a resolution. The parties are expected to explain their position, their proposed resolution, and the key facts supporting their claims. If the parties cannot reach an agreement, it is up to the judge to make a fair and final decision on all issues. The judge may ask questions, request additional information, and will consider any important and relevant information regardless of the formal rules of evidence. There is no cross-examination or witnesses other than the parties. At the end of the Binding Judicial Dispute Resolution process, the judge will provide a final decision on all issues, including any issues that were resolved with the consent of the parties.
The streamlined process of Binding Judicial Dispute Resolution is meant for less complex family law cases where there are a limited number of issues, the parties agree on most (or all) of the facts, and that do not involve witnesses other than the parties. It is not suitable for family law cases where the parties have not exchanged full and complete financial information or where there are significant credibility issues that require cross-examination.
There are a limited number of hearings available for Binding Judicial Dispute Resolution. To request a hearing time both parties must complete and submit the Request and Consent form to the Court at or after their initial case conference. The Court will only approve requests that meet all of the criteria. Once the request is approved, one party must contact the Trial Coordination Office to schedule a hearing time.
At a Binding Judicial Dispute Resolution hearing the judge will make a decision on all outstanding issues. Since this is an expedited process, the judge will only provide an oral explanation of their decision along with a written endorsement of the terms of the order. There will not be detailed written reasons for the decision. This means that the parties can expect a timely decision, which will allow them to have an order issued much quicker than they would through the traditional litigation process.
While binding judicial dispute resolution is still in the pilot stage and not yet available in every jurisdiction in Ontario, it is a welcome first step to help speed up the litigation process for family law litigants.
If you are involved in a family law dispute, the experienced family lawyers at NULaw in Toronto are committed to helping their clients resolve their issues in a fair, timely, cost-effective manner. Contact us online or at 416.481.5604 to learn about your options for alternative ways to resolve your family law dispute.