March 18, 2024 By: Aden Ritter

The imposition of mandatory family dispute resolution in the Province of Saskatchewan was an idealistic program aimed at diverting families from the often high-conflict nature of judicial proceedings. However, the implementation of the program has imposed barriers to parties and increased the costs in a manner that reduces access to justice. Furthermore, the program in its current state, along with the case law that has developed interpreting these restrictions, disproportionately impacts vulnerable members of our society. A rework of the program is necessary to attain the policy objectives underlying family dispute resolution.

The policy rationale behind mandatory mediation was to divert parties from expensive conflictual litigation towards (ideally) lower cost-effective alternatives, with the hope parties would reach satisfactory outcomes through this process. Another goal was that such diversion would reduce trauma to the children by reducing conflict between parties. This was indicated as such in Carbiles v Erbach, 2021 SKQB 129. While these policy goals should be commended, the implementation of the program unfortunately misses the mark. The program treats family matters in a homogenous manner where every file, no matter the situation, stands a good chance at resolving matters through family dispute resolution processes. Furthermore, the framework treats files as if they all have the ability to spend significant amounts of time in this process and urgent relief is not necessary.

In reality, family matters are far from homogenous. These matters can vary from extreme, high conflict custodial disputes to simple discussions over who will keep the house, to the (all too uncommon) friendly separation where parties have things figured out already. Mediation is amenable to some of these matters but is not appropriate for others. Furthermore, given the variety of family matters that can arise, mediation may, in some cases, make problems worse.

The current system also has the effect of disincentivizing parties from participating in the judicial process. In effect, this can push particularly vulnerable parties to accept less than what they may otherwise be entitled to. This is because there is now a barrier to justice, in that parties must go through the time and expense of family dispute resolution processes before they can apply for any interim relief, such as an interim distribution or interim support. Failure to obtain this relief in a timely manner drives parties to accept less.

This mandatory family dispute resolution requirement then disproportionately harms those of lower socioeconomic status, or other individuals in a particularly vulnerable situation. For example, a situation where a single mother who has been the victim of domestic violence must apply for an exemption to mediation, even if there is a no-contact order in place. She may similarly be unemployed, or in dire financial circumstances. This single destitute beaten mother may have to apply for an exemption, an exemption that may not be granted. This unfortunately appears to be happening in the Province of Saskatchewan.

For example, take the case of Anaquod v McLean, 2022 SKQB 134 [Anaquod]. In Anaquod, the Court was asked to grant an exemption from mediation, and for an order for child support (among other requests for relief). Both parties in fact asked the Court for an exemption from mediation. The allegations raised by both parties claimed a history of interpersonal violence, including the following allegations:

1. In an argument, destroying a television;

2. In a separate argument, punching holes in the walls, smashing cellphones, and turning over a bed;

a. An associated guilty plea was entered for this incident;

3. In an argument, one party assaulted the other, allegedly punching, kicking, scratching, and throwing a jack-stand at the other;

a. This charge was stayed in August 2021.

Despite these claims, and uncontroverted evidence between the parties that interpersonal violence had taken place, an exemption from mediation was not granted. The Court unfortunately decided at para 27:

“[27] I am not satisfied, on the evidence, that either the mischief charge or the stayed assault charge, or both, rise to the level of a “history of interpersonal violence” which would exempt the parties from the mandatory early dispute resolution….”

This raises the unfortunate question; how serious must family violence be before an exemption from mandatory early dispute resolution will be granted? In other words, how badly must the single abused mother be abused before an exemption is appropriate? The unfortunate corollary from this is that some amount of family violence is acceptable to the Court.

In Anaquod, the Court did grant a bridging order. This order was limited, without a decision relating to decision-making or counselling for the children (despite the allegations of family violence and other objectionable conduct). The parties were directed to mediation, and encouraged to move towards pre-trial in the event they could not reach an agreement.

This demonstrates the current regime disproportionately impacts the single abused destitute mother. This individual has to apply for an exemption, that may not be granted despite domestic violence, and even if partially successful, some aspects of the children’s lives will be in limbo (such as decision-making), and the parties will have to return to Court if they can’t reach an agreement. In effect, this vulnerable individual (if an agreement cannot be reached) must pay a lawyer twice to go to Court for the exact same relief.

As such, the system as it is now does not appear to be working as intended. The current framework ignores the variety of possible family matters, and disproportionately affects the economically disadvantaged members of our society that require the most assistance. To remedy these issues, minor changes are needed.

First and foremost, parties should apply to trigger a mandatory mediation protocol, with the bar being sufficiently low, but interim relief should be allowed. This allows parties to discuss mandatory mediation at an early stage, or other perhaps more suitable but often less utilized options, apply if necessary, and get judicial direction on the manner of mediation along with the costs associated. This change would importantly remove procedural roadblocks and improve access to justice to obtain interim relief in a manner that benefits parties in particularly vulnerable situations.  

If we are seeking parties to reach final agreements on matters, we should be ensuring the parties are in a fair position to enter into these discussions. Procedural roadblocks preventing access to interim distributions or interim support create an uneven playing field when parties enter mediation.

Second, allegations of family violence should preclude parties from attending mandatory mediation. The framework as it has developed has unfortunately imposed the question of “is the beating severe enough”. This could not have conceivably been the intention of the framework, and we, as a society, should not accept any amount of family violence. The framework should be revised to preclude any imposition of mandatory family dispute resolution if family violence is in play.

As such, the current framework is not working as intended. Minor revisions to this framework can improve access to justice and protect abuse victims from continued exposure to often-times traumatic situations. Furthermore, revisions to the framework can lower barriers to parties thereby increasing access to justice. Lastly, these changes can help alleviate pressures on economically disadvantaged individuals that prevent them from attaining true justice. These changes can better help the families we as lawyers serve.

This is not to take away from the power of alternative dispute resolution mechanisms to solve otherwise difficult disputes. Family dispute resolution systems show great promise and have helped countless families. The issue is that family dispute resolution is not a one-size fits all solution to an incredibly diverse problem. This problem has grown and festered in a manner where those most disadvantaged in society are bearing the brunt of this program’s failures.

Procido LLP distinguishes itself as a law firm with lawyers who are well versed and renowned for their proficiency in skillfully and promptly assisting clients in resolving legal disputes, including family dispute. For further assistance, please feel free to reach out to us at 1.306.664.1444 or via email at admin@procido.com.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice. Contact Procido LLP (www.procido.com) if you require legal advice on the topics discussed in this article.