Is Family Mediation Mandatory When Couples Separate or Divorce in Ontario?
When facing separation or divorce, many couples in Ontario consider mediation as an alternative to traditional litigation. However, a common question that arises is whether mediation is mandatory in Ontario. In this blog post, we will explore this question, the benefits of mediation, and how it fits into the family law process.
Understanding Mediation
Mediation is a voluntary process where a neutral third party, known as a mediator, helps separating or divorcing couples reach mutually acceptable agreements. This process can cover various issues such as property division, spousal support, child support, and parenting arrangements. In mediation, unlike in court, the mediator does not act as a judge to make decisions for the couple about resolving their issues. Instead, the mediator's role is to facilitate dialogue and help the parties reach a mutually agreed-upon resolution themselves.
Is Family Mediation Mandatory in Ontario?
Attending mediation is not mandatory for couples who are separating or divorcing in Ontario.
However, mediation is strongly encouraged under federal and provincial laws and recommended by family court judges as a means to resolve the issues arising from separation including parenting, child and spousal support, and the division of assets.
What does the Canadian Divorce Act say about family mediation?
Section 7.3 of the Divorce Act, which applies to married spouses in Canada provides:
To the extent that is is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be subject of an order under this Act through a family dispute resolution process.
Mediation is a family dispute resolution process as defined by the Divorce Act.
This means that under the law in Canada, married spouses are required to try mediation or another out of court family dispute resolution process such as negotiation or collaborative law before applying to court, unless it would be inappropriate to do so.
Section 7.7(2)(a) of the Divorce Act further provides, “It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act, to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.”
This means that lawyers also have a positive duty to encourage their clients to attempt to resolve matters through mediation or another family dispute resolution process, unless it would be clearly inappropriate in the circumstances of the case to do so.
There is no definition in the Divorce Act as to when it would be inappropriate to try to resolve matters through mediation or another family dispute resolution process, but generally applications to family court should made only when necessary, such as situations where there is an emergency or safety concerns requiring a court order, or when out of court dispute resolution options like mediation have been exhausted.
What do the provincial Ontario family laws say about mediation?
The Ontario Family Law Act , which applies to married and common law spouses and governs property and support issues, permits the Court to make an Order appointing a mediator.
The Children’s Law Reform Act, which governs parenting issues between unmarried spouses, also provides that the court may appoint a mediator at the request of the parties.
The Family Law Rules in Ontario further permit a judge to make an order combining otherwise mandatory and case and settlement conferences into a single court appearance where the parties have attended mediation and provided certain conditions have been met. Attempting mediation before applying to court can therefore potentially shorten the length of the court process, should court ultimately become necessary to resolve a dispute.
These laws are intended to promote the use of mediation. Family court judges commonly rely upon them to encourage parties to attempt to resolve issues through the mediation rather than court wherever possible.
Therefore, while mediation is not mandatory for separating families in Ontario, the current laws and decisions of family court judges strongly signal that other than in certain limited circumstances, mediation or another family dispute resolution process should be attempted prior to applying to court.
Even in contentious circumstances, there are many benefits to trying mediation before applying to family court. These benefits include saving time and money, reducing stress, maintaining autonomy over the outcome of your situation, and minimizing future conflicts.
You can learn more about the mediation process and its benefits in our posts on How Does Mediation Work for Separation and Divorce in Ontario and What Are the Benefits of Using Mediation When You Separate and Divorce in Ontario?
If you’re interested in learning more about mediation and collaborative law, and the distinction between these two family dispute resolution processes, you can read more about that topic in our post on Understanding Mediation, Collaborative Law, and Collaborative Mediation.
Disclaimer: This blog is for informational and educational purposes only, and none of the information in this blog post should be construed as legal advice. Should you have questions about your legal rights and obligations, or about your legal process options when you separate, you should consult with an independent lawyer to receive legal advice.
We can work it out. Together.
Teal Family Mediation is team of professional divorce mediators located in Hamilton, Ontario offering mediation services for separating married and common-law couples and co-parents. We provide an alternative to high-cost, inefficient and adversarial court proceedings with an affordable, modern and compassionate approach towards resolution.
We offer services in-person at our offices located in the Ancaster, Meadowlands and virtually from anywhere in Ontario.