MANITOBA LEGISLATURE TO CONSIDER MEDIATION-FIRST APPROACH FOR DIVORCE CASES
If you have separated or divorced through the court system, or know someone who has, then you know that the experience can be extremely stressful and expensive. With this in mind, this past Tuesday (March 12th) Justice Justice Minister Cliff Cullen of Manitoba introduced a bill to help families solve their disputes outside of the court system.
The Family Law Modernization Act would create a three-year pilot project whereby families would first work with a mediator to sort out property, custody and support issues. If the issues cannot be resolved at this stage, then an adjudicator (situated within the community and not necessarily a Judge) would make a “recommended order”. This would become a Court Order if it is not objected to by either party within 35 days. If an objection is filed, then the parties would proceed to court.
A three-year pilot project beginning in 2020 would also allow couples to try to resolve disputes through a variety of means to avoid going before a judge. The project involves two phases — the first using a resolution officer to help parties come to a mutually satisfactory agreement. If a dispute is unable to be resolved in the first phase, it heads to a hearing with an adjudicator, who makes a recommended order which is deemed as confirmed as a court order if neither party objects.
The purpose behind the proposed legislation intention is to empower families to resolve disputes within their own communities and without having to rely on the intervention of lawyers and Judges. As Justice Minister Cullen stated:
"Our current family system is failing too many families and children. The traditional court-based system is complex, it’s adversarial, it’s expensive and ultimately damaging to many Manitoba families."
Ontario certainly would benefit from following Manitoba’s lead. The Family Courts annually deal with approximately 75,000.00 cases, with the majority cases having at least 1 unrepresented party and lasting an average of two years before final resolution. According to the Law Commission of Ontario, in 2015, 83% of litigants reported feeling “overwhelmed, disheartened and disappointed with the court-system” and 95% of self-represented litigants reported the “high cost of lawyers” to be the reason why they chose not to hire a lawyer.
Ontario does have a robust family mediation network, whereby families can choose to go to a mediator to resolve their disputes out of court. The difference between the current Ontario model and the one proposed in Manitoba however, is that for the majority of cases in Manitoba, mediation would be mandatory before access to a Judge in court is granted. In Ontario, mediation is not mandatory.
Until large scale change comes to Ontario, the challenge for family mediators will always be to educate families before they enter the court system on how effective mediation can be at helping families resolve disputes in a timely and amicable manner.