“JDR is a court process that is intended to provide separated families with a faster, simpler, less acrimonious and more cost-effective way of resolving family law issues, as compared with a trial. In the Ontario Superior Court of Justice, JDR is currently being offered as a pilot program in certain courts, operating under local Practice Directions. This endorsement arises from the first JDR in the Kitchener Unified Family Court.
A JDR hearing combines initial settlement discussions with the benefit of a decision-making component by the presiding judge about any issues that the parties are not able to resolve on consent.
The process has been designed to be practical and efficient, and to help families craft their own resolutions if at all possible. It is more interactive and less adversarial than a trial. The intention is that the parties, counsel and the judge work together to craft a consent final Order, that day. Because the parties have the benefit of receiving input from the presiding judge about the outstanding issues, most parties resolve their issues themselves without a ruling. Any remaining issues are likely to be narrow, so that the adjudication stage of the hearing is relatively focused.
The JDR process is voluntary, and accessible only where a judge agrees that the case is appropriate. This could be determined at any court attendance, such as a case or settlement conference, trial management conference, or by 14B motion. Initially, the process is being introduced for cases with only a few issues and which are not complex, where credibility is not a significant concern, and where disclosure is complete. Cases that lend themselves will include parenting arrangements, select child support issues, or select property issues.
If a judge gives the “green light”, the parties then file a signed “Consent” document to the court in which they request participation in JDR. That document provides, among other things, that the parties:
a. commit to keeping their financial disclosure up to date;
b. agree to provide to the other party and the court a comprehensive settlement proposal in the form of a draft Order, that can be used during the JDR process;
c. agree to have their case decided without a trial, in an expedited and less formal manner;
d. waive any right to the strict application of the rules of evidence;
e. acknowledge that the court may rely on reports prepared by professionals including agents of the OCL, without the attendance of those individuals at the JDR; and
f. agree and request that the same judge will preside over both portions of the process.
Parties must each serve and file brief affidavits, to which they may attach exhibits. In addition, all statements made during the process, whether during the settlement discussions or the adjudication phase of the hearing, are evidence that may be relied on if the court is required to adjudicate. Parties are sworn in, or affirm, at the outset of the process.
In Kitchener, JDR’s are presently scheduled for a half day, with the afternoon available for the preparation of a brief decision if necessary. Locally, the intention is that between 90 minutes and two hours be allocated to the negotiation phase, during which the judge helps the parties identify their interests, consider options, and reach resolution. The judge may express opinions, and this does not preclude determination of the issues. In fact, this is one of the main benefits of the JDR process. Parties have an opportunity to discuss with the judge who is deciding their case, what that judge’s approach to the issues will be, and to receive guidance regarding the strengths and weaknesses of their respective positions. Equipped with that information, parties can usually craft their own resolution.
If an adjudication phase becomes necessary, that too would be allocated between 90 minutes and two hours. There is no formal procedure required, but the judge would usually provide each party with an opportunity to supplement the information and evidence already before the court, and give the parties or counsel an opportunity to present their arguments about why the orders requested by the party should be made. The judge may elicit further information directly from the parties and, although there is no formal right of cross-examination, the parties may raise questions that they think would be helpful for the judge to ask the other party before making a final decision.
The process is flexible, so the judge may reallocate the negotiation and adjudication time as she or he finds most helpful to the parties.
To the extent that the court is required to decide some or all of the issues, it is the intention that reasons be brief and focused, and the goal is that whether through settlement or a decision, parties have an “answer” to their issues by the end of the day or shortly thereafter.
The goal is to help the parties achieve resolution efficiently, and the court therefore discourages adjournments. As a significant block of court time has been set aside for the hearing, it should be treated with the same respect as a trial. Parties should be prepared and ready to proceed on all issues to achieve a final completion of their matter on the scheduled day.”