“Significant amendments to the Divorce Act came into force on March 1, 2021. These amendments modernized the language in the Act by removing any reference to the terms “custody” or “access” and replacing them with terminology that focuses on parent’s responsibilities for their children, with the goal of helping to reduce parental conflict. The Act introduced new terminology relating to “parenting orders”, “parenting time” and “decision-making responsibility”, and further added other terms and definitions including “family dispute resolution process”, “family justice services”, “family member” and “family violence”. Similar changes were also made to provincial statutes such as the Children’s Law Reform Act (CLRA), contained in the Moving Ontario Family Law Forward Act, 2020, (which also came into force on March 1, 2020).
In my view, these changes are very welcome to the Family Courts and it is my hope they will do exactly what they were intended to do, which is to help reduce conflict, which is ultimately in the best interests of children.
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The amendments to the Act relevant to this matter is that the Court may now make an order directing the parties to attend a family dispute resolution process pursuant to s.16.1(6). The definition for “family dispute resolution process” is set out in s. 2(1) of the Act, as follows:
Family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law; (mécanisme de règlement des différends familiaux)
Here, the husband deposes that the parties had discussions and, prior to separation, agreed that JAL would attend public school and be enrolled in Jewish religious school on Sundays. The wife denies that agreement. Instead, she deposes that she recalls one discussion where the husband expressed his desire for JAL to attend public school and, at that time, she said “sure”. The wife submits that there were no ongoing discussions between the parties about JAL’s school placement but, rather, this was a one-time discussion. Again, JAL was six months old when the parties separated.
These parties have a demonstrated history of being able to reach agreement in relation to matters concerning JAL. They were able to reach a parenting agreement in mediation with Philip Epstein on May 19, 2019. The parenting schedule agreed to in mediation was to be in place for one year and to be reviewed in September 2020 and, failing agreement, the parties were to determine the dispute resolution process. After the husband commenced this application, even though he sought a s.30 custody and access assessment and raised concerns about the wife’s mental health and parenting abilities, the parties were still able to agree on an equal-time shared parenting residential schedule at a case conference, such that JAL resides with the parties, pursuant on a 2-2-3 schedule.
While court is unquestionably a dispute resolution process, I find that a court application was not a dispute resolution process of first resort envisioned by the parties when they signed their agreement at mediation. Had court been the first option, they could easily have said so.
There is no urgency to the Court making a determination about JAL’s school placement for September 2022. There is, in my view, an opportunity here for the parties to attempt a less divisive solution – to enter into a family dispute resolution process where, with creativity and compromise, they can try to negotiate an agreement about how they will share the decision-making responsibility for JAL and one where they can try and design a comprehensive parenting plan to establish principles and rules to guide how they will share responsibilities and time with JAL, including addressing such matters as: how information is to be shared and communicated between them; how other related issues are to be addressed, such as the involvement of a new partner with the child; how future disagreements about the child are to be resolved; whether or not a parent should have a right of “first refusal” is the scheduled parent is unable to personally be with the child; how the parents are to manage attendance at child-related events; which parent is to hold the child’s government-issued documents; how travel with the child can take place; how the children’s personal items are to managed – and what school the child will attend. Again, with creativity, compromise and third-party assistance, the parties have the chance to find a less divisive solution that will ultimately benefit their child.
It is well-established that children of parents who separate do significantly better if their parents co-operate and communicate with each other and conflict is minimized. If communication and co-operation with the other parent is difficult, then a good parenting plan can provide the details of parenting arrangements so that parents are not required to negotiate every decision that needs to be made and so that parents do not turn to the Court to make decisions for them that they themselves may be able to make with some assistance.
Section s.16.1(6) of the Act is a new tool that can be used by the Court to assist parties who cannot agree about a major decision that impacts their child(ren) prior to making such a determination, in circumstances where such a decision is not time-sensitive. Having parents arrive a decision together, with the assistance of a skilled professional, is far better for children than having the Court impose a decision on a family where parents cannot reach a resolution about an important matter affecting children. If parents, even those who have tremendous difficulty, can be part of the design of a parenting plan, they will no doubt be far more likely to follow the terms of the plan since they were invested in making up the terms and plan. The Act requires parents to act in the best interests of children, to the best of their abilities, and to protect their children from conflict that may arise as a result of separation or divorce. It also includes an expectation that parents will support the child’s relationship with the other parent, unless it would be inappropriate to do so, for example, if there are concerns surrounding family violence. The amendments to the Act which enable the Court to order the parties to attend a family dispute resolution process, in my view, are a reflection of the growing body of research about the effects of separation and divorce on children which can be reduced if parents are able to develop parenting plans that meet the needs of children and promote children’s healthy development.”