Parents told to pursue resolution outside of the courts

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When people go through a divorce or separation, they can experience a great deal of stress. One common cause of stress can be concern about the length and cost of litigation they may have to go through. That’s one of the reasons why Howie Johnson Barristers & Solicitors offers our clients mediation services. Mediation is an alternative to litigation and uses a mediator instead of a judge to help guide the parties to an agreement. While it’s not a one-size-fits-all solution to family law matters, exploring mediation can be a useful way to determine whether litigation is necessary or if a resolution can be reached without the courts. 

When putting together a separation agreement, parties can agree to explore mediation or other alternative dispute resolution processes. A recent decision from the Ontario Superior Court of Justice shows us that if such an agreement is in place, the parties to it should remember to follow those directions rather than employing the courts to resolve their differences. 

Parents Could Not Agree Which School their Child should Attend

The parents involved in the matter were married in 2015 and separated in 2019 six months after the birth of their only child. They were able to use mediation to resolve all their outstanding issues, subject to review. If any issues came up at that time, they stated they would determine a dispute resolution process.

 

Following the review, several details were left unresolved, including decision-making authority and where the child would attend school. Both parents were Jewish and were active in their faith. They both celebrate and embrace Jewish traditions. Previously they had agreed that the child would attend a Jewish day school called Robins Hebrew Academy (“RHA”). The child began attending RHA in September, with the child’s maternal grandmother paying for the school’s fees. 

 

The father’s position regarding school is that he agreed the child should attend RHA for one year and that he would thereafter attend public school and attend Jewish school on Sundays. He told the Court neither parent could afford the school fees or speak Hebrew, leaving them unable to assist him with homework. The father also said it is the mother’s parents who are adamant about RHA and that the matter should be one decided by the parents. 

 

The mother told the Court that while she and the father were unable to agree on where the child to go to school, the court was not the right avenue for resolving the matter. She said they had agreed to use mediation to resolve issues and pursue assistance from the courts only if mediation was not successful. In the alternative, the wife argued that if the Court did decide to issue a ruling on where the child should attend school, that RHA would be in his best interests. 

Recent Changes to the Divorce Act allow Courts to Order Parties to attend a Family Dispute Resolution Process

The Court began its analysis by noting that recent changes to Ontario’s Divorce Act state that courts may now make orders directing parties to attend a family dispute resolution process. The Divorce Act defines a family dispute resolution process as follows:

 

“A process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law…”

In this case, the father said he and the mother already agreed on where the child should attend school. The wife, however, denied that such an agreement existed. If anything, she said she recalled that at one time the husband expressed his desire for the child to attend public school, and she responded by saying “sure.” She said there was no ongoing discussion around the matter considering the child was only six months old when they separated. 

Parents Successfully Resolved Issues Previously through Alternative Dispute Resolution methods

The Court noted that the parents have demonstrated a history of being able to reach agreements in relation to matters concerning their child, including a parenting schedule. The parents hadn’t agreed specifically to mediation as a dispute resolution process, though, instead stating that they would agree on “a dispute resolution process.” 

 

While courts are certainly a form of dispute resolution, the Court stated it is hard to believe the parties had litigation in mind when making their agreement. Regarding timing, the court stated that there is no urgency to the issue since the next school year is close to ten months away, leaving the situation ripe for a family dispute resolution process that would allow the parents to exercise creativity and compromise in negotiating an agreement, ultimately leading to a less divisive process.

Minimizing Conflict is in the Child’s Best Interest

The Court added that it is well-established that children do better when their parents are able to cooperate and communicate with one another while minimizing conflict. A parenting plan can assist with minimizing conflict when communication is difficult, including methods for allowing parents to make decisions without the necessity of the court’s involvement. 

 

As a result, the Court found there was no compelling reason to make a determination about the child’s school placement in September 2022 at this time. In the spirit of the family dispute resolution process and the wife’s suggestion to first reach an agreement on decision-making responsibility, the court ordered the parents to engage with a skilled mediator with experience in areas of high conflict parenting or family law. 

Contact Howie Johnson Barristers & Solicitors to see if mediation is right for you

The family and divorce lawyers at Howie Johnson Barristers & Solicitors provide mediation services to clients in the Windsor area. Firm founder Jason P. Howie is certified by the Law Society of Ontario as a Specialist in Family Law and has more than 15 years of experience as a mediator. Jason is often retained by lawyers to conduct mediation in family law matters. The firm can assist with mediation on all types of family-related disputes including divorce, separation, child custody, child support, spousal support and division of assets. To inquire about mediation or other family law matters, please reach us online or by phone at 519-973-1500.

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