Nicholas McFarlane
March 23, 2023
In this blog post, I will discuss the merits of expanding the Ontario Mandatory Mediation Program (OMMP) into the area of family law. It is hoped that this post will be beneficial for legal professionals and policy makers interested in the OMMP and family law in general.
When the OMMP was studied in the Hann Report, it was recommended that mandatory mediation in Ontario should be expanded to new areas of law.[1] Arguably, a prime candidate for expansion is family law. To begin, mandatory mediation for family law cases could potentially have a large impact in alleviating court backlogs. Based on 2018 Ontario Superior Court of Justice statistics, there were 46,621 family law cases across the province.[2] This amounted to 25% of all Superior Court cases that year.[3] As per the Hann Report, mandatory mediation in Ontario has approximately a 40% settlement rate and accomplishing a similar feat in family law would be a great victory for access to justice.[4] On this note, former Supreme Court Justice, Thomas Cromwell, has publicly advanced the idea of mandatory family mediation as an access to justice tool.[5] Specifically, Justice Cromwell discussed this initiative as the Chair of the National Action Committee on Access to Justice in Civil and Family Matters.[6]
In addition, the prevalence of mandatory family mediation on an international scale further suggests that adopting this policy in Canada is a good idea. Countries with mandatory family mediation include the United Kingdom (UK), Italy, Austria, Spain, Norway, Hong Kong and Australia.[7] Mandatory family mediation is also implemented in California and there have been discussions of adoption in provinces like British Columbia and Alberta.[8] To provide an example of mandatory family mediation benefits, the Italian mandatory model achieved a 57% settlement rate in family cases in 2020.[9]
With this background in mind, attention can be drawn to the current family mediation scheme in Ontario. In Ontario, several statutes have followed a voluntary mediation approach. For example, under the Family Law Act, mediation is a discretionary tool that can be ordered by a court on a motion.[10] Similarly, mediation is discretionary under the Divorce Act and per the Children’s Law Reform Act, a party must request the court to make an order for mediation.[11] According to scholars, common objections to mandatory family mediation include financial and emotional power imbalances and concerns regarding domestic abuse.[12] To address the issue of financial power imbalances, mandatory family mediation can potentially provide a cost-effective alternative to litigation to resolve family disputes in an affordable manner for both parties. With regards to emotional power imbalances, various tools such as shuttle mediation can be employed to facilitate dispute resolution in an isolated environment where parties may feel more comfortable to engage in negotiation. Lastly, concerning domestic abuse, it is recommended that Ontario adopt a mandated intake process to identify these issues and in turn exempt parties from mediation in these instances. This proposed intake process could also flag concerns regarding emotional and financial power imbalances.[13] For Ontario, a potential model to emulate is the UK model, which has a formalized intake process with each party through Mediation Information and Assessment Meetings.[14]
Ultimately, I hope the information presented in this post encourages further interest in OMMP expansion into family law. For more related information, please see the following sources:
[1] Ontario Bar Association, “Expanding Mandatory Mediation in Ontario” (Ontario: Ontario Bar Association) 1 at 9; Robert G. Hann, et al., “Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1) Final Report: The First 23 Months” (Ontario: Osgoode Hall Law School of York University, Osgoode Digital Commons, 2001) 1 at 2 [Hann Report].
[2] Ontario Superior Court of Justice “The Superior Court of Justice: Enhancing Public Trust Report for 2017 and 2018” (Ontario: Ontario Superior Court of Justice, 2019) 1 at 39-46.
[3] Ibid.
[4] Hann Report, supra note 1 at 2.
[5] Catherine Morris, “The Impact of Mediation on the Culture of Disputing in Canada: Law Schools, Lawyers and Laws” Mediation in Asia-Pacific: A Practical Guide to Mediation and Its Impact on Legal Systems (New York: Wolters Kluwer Law & Business & CCH Hong Kong, 2013) 1 at 34.
[6] Ibid.
[7] Bethany Knox, “A Consideration of a Mandatory Family Mediation Model under section 9 of the British Columbia Family Law Act” (Victoria: University of Victoria, 2014) 1 at 26-36 [Knox]; C.H. van Rhee, “Mandatory Mediation Before Litigation in Civil and Commercial Matters: A European Perspective” (Netherlands: Masstricht University, Faculty of Law, 2021) 7 at 13-17 [Rhee].
[8] Ibid.
[9] Rhee, supra note 7.
[10] Family Law Act, RSO 1990, c F3, s 3(1).
[11] Divorce Act, RSC 1985, c 3, Article 6, 2d); Children’s Law Reform Act, RSO 1990, c C12, s 31(1).
[12] Knox, supra note 7 at 21.
[13] Rhee, supra note 7 at 11.
[14] Ibid at 9-12.