Having spent over 35 years practicing family law, it has become clear to me that families who are separating are in crisis and need a way to resolve their disputes outside of a judicial system designed for commercial and civil disputes and criminal punishment. For the vast majority of separating spouses there can be a better and more effective process to meet their specific needs and assist them in resolving their family law dispute.
Our Family Law Courts are a necessary institution in the small minority of cases in which one of the parties is engaging in harmful or abusive conduct or refuses to follow the law. However, for most cases, accessing the Court is not necessary and may not result in the most time and cost effective solution to resolving the family law disputes between spouses. If parties voluntarily and promptly provide all of the necessary disclosure required to resolve their dispute and are committed to a safe and fair resolution process, a Rapid Resolution of their issues can be achieved.
Our court-centric legal system for family law has evolved over the years and is now more amenable to, and encourages, alternative dispute resolution. In fact, as a result of relatively recent amendments to the Divorce Act, the Act now requires parties to try to resolve family law matters by way of alternative dispute resolution, except where it as may not be appropriate such as in cases of very high conflict, power imbalance or family violence.
There are a number of effective and unique alternatives available to separating spouses who seek resolution outside the court system, including traditional mediation, arbitration, mediation/arbitration and collaborative family law. All have their strengths and weaknesses. However, one of the most criticized aspects of both court and alternative dispute resolution processes is the time and cost it takes to finally resolve their family law disputes.
The Ontario family court system has tried to keep up with a constant and growing demand, despite the pressures placed on it during the covid pandemic. Notwithstanding the regular initiatives put in place to streamline the court process, most cases will typically take 2-3 years to make it through the system to trial. Of course, it is axiomatic that the longer a case takes, the more money is spent by both parties. Unfortunately, although mediation, arbitration, mediation/arbitration and collaborative practice all bring unique processes for the resolution of family law disputes, they also can be very time consuming and expensive.
Most experienced family lawyers will be able to predict (within a reasonable range) how a case will be resolved in their first consultation with a client. So why do we spend so much time and money fighting about issues when the outcome is usually foreseeable by experienced family law counsel early on in the process. I don’t have the answer to that question, but I do have a solution for the many cases where closure is as important as any single issue.
The solution is something I have termed “Rapid Resolution – the One Day Solution”.
The process requires a binding Rapid Resolution agreement between the parties, who, with their counsel, determine which issues will be settled or resolved in accordance with this process. Thereafter, the most important step is complete disclosure. Our legislation and our courts have made it crystal clear that full and frank financial disclosure is required, and parties have a legislated duty to provide it. A rapid process of resolution cannot occur without an agreement that each party has provided their disclosure and there are no outstanding requests for disclosure.
The parties then prepare briefs setting out the issues in dispute together with any information supporting their position on the issue. These briefs are delivered no less than two weeks prior to the date for a one day mediation/arbitration. The mediator/arbitrator reviews the briefs and taking on an inquisitorial role; asking for further information or documents as she deems necessary to assist in the resolution or determination of the issue(s).
On the day of the mediation/arbitration, the parties will mediate until a set time (i.e. 1 or 2 pm) and following a short break, each party will have time to provide submissions concerning any unresolved issues. The mediator/arbitrator will then make a decision on the issues and prepares a short Award with brief reasons. The rights of appeal are agreed to be limited to judicial review and an appeal on an issue of law (with leave). The parties specifically agree to not appeal on the grounds of insufficient reasons for the decision.
The process is particularly suitable for discrete financial disputes and parenting issues and can address other mutually agreed issues, if all parties and their counsel agree to the process in the Rapid Resolution mediation/arbitration agreement, subject to intimate partner imbalance screening.
Like everything, one process is not appropriate for every case. But for those cases and clients who want their case done in a single day, Rapid Resolution may be the solution for them.