By: Wanda Wiegers, Jennifer Koshan and Janet Mosher
PDF Version: Domestic Violence and Alternative Dispute Resolution in Family Law Disputes
Legislation Commented On: Bill 98, The Miscellaneous Statutes (Family Dispute Resolution) Amendment Act; Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act
Access to justice in the family law sphere has received a lot of attention in recent years. One recurring theme is the large number of self-represented litigants and the need to explore mandatory out-of-court dispute resolution. Alberta does not currently mandate any type of alternative dispute resolution (ADR) for family law or child welfare matters (see here), but some other jurisdictions do. One issue that arises in this context is whether ADR is appropriate in cases involving domestic violence. In Saskatchewan, Bill 98, The Miscellaneous Statutes (Family Dispute Resolution) Amendment Act, will amend the Queen’s Bench Act, 1998, SS 1998, c Q-1.01, to require parties to participate in family dispute resolution (s 44.01(3)), but the parties may be exempted from that requirement if there is a history of interpersonal violence between them (s 44.01(6)(c)). We submitted a brief to the Saskatchewan Ministry of Justice in August 2017, prior to the enactment of Bill 98, which discussed the importance of considering domestic violence in this context (see here). The issue is once again alive as Parliament debates Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. In its current iteration, Bill C-78 would amend the Divorce Act, RSC 1985, c 3 (2nd Supp), to create duties (1) on parties to “try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process” (proposed s 7.3) and, (2) on legal advisers to encourage their clients to use family dispute resolution processes (proposed s 7.7(2)(a); Bill C-78 defines “legal adviser” as “a person who is qualified, in accordance with the law of a province, to represent or provide legal advice to another person” in any proceeding under the Divorce Act). Although the amendments recognize that the duties may not apply where “the circumstances of the case are of such a nature that it would clearly not be appropriate to do so,” they do not explicitly exempt cases involving domestic violence at present.