Family Dispute Resolution
Family Dispute Resolution is now a required step in all family law cases in Saskatchewan.
What is family dispute resolution?
Family dispute resolution is a form of Early Dispute Resolution (EDR) used to try to resolve some or all of parties’ family law issues. It can involve mediation, arbitration, parent coordination or collaborative law services.
When is family dispute resolution required?
If a court case involves divorce, family property, parenting arrangements, child support or spousal support, family dispute resolution is a required step. This step is required at the close of pleadings.
For cases started with a Petition pleadings close when the time for filing a Reply, to an Answer or Answer and Counter-Petition filed by the other party, has passed. If a case is started with a Petition and the other party does not respond, within the time allowed for a response, family dispute resolution is not required.
When an application to change an existing order is made family dispute resolution must take place before the hearing.
Once the parties have gone through the family dispute resolution process, the professional they have seen provides them with a Certificate of Participation. To receive this Certificate the parties must have met with the professional and made a good faith attempt to resolve some or all of their issues.
Are there any situations where I would not have to participate in family dispute resolution?
If family dispute resolution is required, you can apply to the court to be exempt. The court can exempt you if:
- There is a restraining order between you and the other party.
- Your child has been kidnapped by the other party.
- There is a history of violence between you and the other party.
- You provide the court with proof that you have tried to get the other party to use family dispute resolution.
- There are extraordinary circumstances.
What Happens If I do not Participate?
If family dispute resolution is required, you will not be able to take any more steps in your court case or make another court application concerning your case unless you participate in family dispute resolution. The other party can also ask the court to:
- Strike out any court forms you have on file. (This means it would be as if you had never served and filed these forms)
- Refuse to let you make any arguments concerning your case to the court.
- Order that you participate in family dispute resolution.
- Order that you pay the other party costs.
Types of Family Dispute Resolution
The following are types of EDR that can be used to satisfy the requirement for family dispute resolution. Any of these processes can also be used even when family dispute resolution is not required. For example, the parties themselves can decide to try one or more of these methods even though they have not started a court case or the parties can use one of these methods even if family dispute resolution is not required where their case is started.
The parties themselves are responsible for the costs of participating in family dispute resolution.
The Early Family Dispute Resolution page of saskatchewan.ca has contact information for family mediators, family arbitrators and parenting coordinators who are recognized as early dispute resolution professionals and a toll-free number for people that need assistance with the process.
Mediation is an EDR process in which a neutral and independent third person, called a mediator, helps people who have a dispute find a way to resolve it. Mediation is not couples counselling or therapy. Problems that can be solved through mediation include such things as:
- who, if anyone, will stay in the family home
- where the children will live
- how the parties and any children will be supported
- how property will be divided
The parties themselves are still responsible for making decisions about how to settle matters but the mediator may help the parties find common ground or consider things in a different light. A mediator cannot make an order or force the parties to agree.
Who are Mediators?
A family mediator can be a social worker, lawyer, psychologist or other trained professional. If the parties are seeing a lawyer, their lawyer may recommend a mediator. Parties may also ask friends for the names of mediators they have used, search an online directory, or look in the yellow pages of the phone book. Conflict Resolution Saskatchewan has a directory of mediators in Saskatchewan.
Family mediators must have certain qualifications. They must:
- Be a member of the Law Society of Saskatchewan, Family Mediation Canada, the ADR Institute of Saskatchewan, or a member of the Dispute Resolution Office’s (Government of Saskatchewan) Family Mediation Team.
- Have at least 2 years of experience in family-related practice.
- Have completed at least 80 hours of mediation training including:
- 21 hours of training on family dynamics in separation and divorce
- 7 hours of training on financial issues related to separation and divorce
- 7 hours of training on ethical issues related to separation and divorce
- 7 hours of training on drafting summaries of meetings and memoranda of understanding
- Have completed at least 1 hour of family violence training.
- Have completed at least 21 hours of family law training if they are not lawyers.
Mediation usually involves direct discussions with the other party. Typically the mediator and both parties are in the room together. Sometimes factors such as distance, family violence or a power imbalance may make having everyone in the same room difficult. In these cases there may be options such as shuttle mediation, where each party meets separately with the mediator. Where distance is an issue, technology such as video-conferencing can be used for mediation.
The parties generally meet with the mediator several times. The first meeting is often used to determine if mediation is a good option for the parties, to discuss how mediation will work and to establish basic rules for future meetings. Depending on the situation, the mediation process can include people other than the parties themselves, such as a new partner or extended family members.
A mediator may help the parties find solutions they had not considered before. The parties discuss the issues and make joint decisions about how to settle them. The mediator can then help them put the decisions down on paper.
Evidence arising from something that was said in mediation and anything said in mediation cannot be used for other purposes unless both parties and the family mediator consent to this in writing.
When Mediation is Court Ordered
If a court case has been started regarding parenting arrangements for a child or child or spousal support the court can appoint a family mediator. The court can do this on its own or if one party asks the court to appoint a family mediator. This can be done even if the parties have already engaged in EDR as a requirement of starting the case or on their own.
The person appointed must agree to act as a family mediator and must have certain qualifications. The court determines how the costs of a mediator will be split between the parties. The court can order one party to pay the whole cost if contributing would cause the other party serious financial hardship.
Either party can decide at any time to end mediation. If the parties are using mediation to satisfy the requirement for family dispute resolution, they must make a good faith attempt to resolve some or all of their issues before ending mediation. If mediation is court ordered the parties must attend at least one session before ending mediation. After the first session either party can decide to discontinue mediation and go back to court.
Parenting coordination is a form of EDR that can only be used if there is already an agreement or court order concerning parenting arrangements. If there is, the parties can agree to use a parent coordinator to try to resolve issues around that order or agreement. Both parties are required by law to give the parenting coordinator any information the coordinator requests to help with parenting coordination.
Parenting coordinators can help build consensus between the parties by doing things such as:
- Creating guidelines about how the agreement or order will be implemented.
- Creating guidelines about communication between the parties.
- Identifying and creating strategies for resolving conflicts between the parties.
- Providing information about resources for improving communication or parenting skills.
Who are Parenting Coordinators?
A parent coordinator can be a licenced lawyer, psychologist, social worker or a mediator who is a member of Family Mediation Canada or Alternative Dispute Resolution of Saskatchewan. They must have at least 5 years of experience in a family-related practice. They must have at least 40 hours of training in parenting coordination, including training about…
- the role and responsibilities of a parenting coordinator, including screening parties for power imbalances and family violence
- arbitration and decision-making
- communication skills development
- the effects of separation and divorce on parents and children
- high conflict family dynamics
- child development and developmental needs
Parenting coordinators who are not lawyers must also have at least 14 hours of training in family law. All parenting coordinators must also have at least 14 hours of family violence training, including training in identifying, assessing and managing family violence and power dynamics in relation to family dispute resolution.
Parenting Coordination Process
A parenting coordinator works with the parties and can make decisions about the child’s:
- daily routine and parenting time schedule
- participation in extracurricular activities and special events
- medical, dental or other health care
- childcare arrangements with people who do not have parenting time or decision-making authority
- transportation and exchange for parenting time
- travel plans when the child is going between the parties
- parenting time during vacations and special occasions
- communication between a party and the child when the child is not in the party’s care
In making any decisions the parenting coordinator must only consider the best interests of the child.
They cannot make decisions about anything that is excluded by the agreement the parties have made with the parenting coordinator. A parenting coordinator also cannot make a decision about:
- How decision-making responsibilities are divided between the parties.
- Giving parenting time to someone who does not already have parenting time with the child.
- Relocation of the child.
- Division or possession of property or debt.
A parenting coordinator can tell the parties about their decision verbally but it must be put in writing and signed by the parenting coordinator as soon as possible. The parties must comply with the decision and it can be filed with the court. If it is filed with the court it is enforceable as a court order.
The decision of a parenting coordinator can be set aside by the court if it was not something the parenting coordinator had the authority to make a decision about. The court can also set aside a decision by a parenting coordinator if they made a mistake about the law or a mistake about the law and some facts. If the court sets aside the parenting coordinator’s decision the court can make orders to resolve the issues. If the court does not set aside the decision, the court can make orders to enforce the decision.
Evidence arising from something that was said when the parenting coordinator was assisting the parties and anything said during parenting coordination cannot be used for other purposes, unless both parties and the parenting coordinator consent to this in writing.
When Parenting Coordination is Court Ordered
If there is a court case, either party can ask the court to make a parenting coordination order. They can do this even if they have already participated in EDR as a requirement when starting the case or on their own. The court can specify how the expense is to be divided between the parties. The court can order that one party will pay the full cost if splitting the cost would create serious financial hardship for the other party.
Ending Parenting Coordination
A parenting coordinator’s authority to act ends two years after the agreement or court order appointing them was made. The agreement or order appointing a parenting coordinator can also say that the appointment will end before two years. The agreement or court order can state that it ends on a certain date or when a certain event occurs.
The parties to a parenting coordination agreement can also end it at any time by agreement. If only one party wants to end the parenting coordination agreement they can apply to court to have it ended. If there is a parenting coordination order, the court can make another order ending it. If the parenting coordinator no longer wants to act they must give notice to the parties. If the court ordered parenting coordination. the parenting coordinator must also notify the court if they are no longer acting.
Arbitration is a type of EDR. The parties to a dispute agree to appoint an arbitrator rather than have the court make decisions. Parties can also agree to have future disputes concerning a family law order or agreement dealt with by arbitration. Unlike a mediator, an arbitrator is given the power to make decisions about how to resolve the dispute. These decisions are called awards.
Who are Arbitrators?
Arbitrators are independent third-parties and are required to have certain qualifications. To be a family arbitrator the person must:
- Be a lawyer.
- Have at least 10 years of experience in family-related practice.
- Have completed at least 40 hours of arbitration training, including training about:
- laws that apply to arbitration
- the conduct of an arbitration hearing
- rules of evidence and natural justice
- writing awards and decisions
- high conflict family dynamics
- Have completed at least 14 hours of family violence training, including training in:
- identifying, assessing and managing family violence
- power dynamics in resolving family disputes
In addition, arbitrators must take at least 6 hours of training each year about arbitration of family disputes. Parties can choose anyone with these qualifications to arbitrate their dispute.
If you want to resolve a family issue by having an arbitrator decide what should happen, you and the other party must agree in writing to use this process. Both the parties and the arbitrator chosen must sign the agreement. The agreement sets out the issues you have agreed to have arbitrated and the process that will be used. The arbitration process can include mediation, negotiation, written submissions and/or testimony from witnesses depending on what process the parties decide to use.
Regardless of the process being used, the parties must be treated equally and fairly. The arbitrator cannot favour one party over the other. Both sides must be given a chance to present their case and to respond to the other party’s case.
After hearing from both sides the arbitrator makes a decision, called an award. If the arbitrator is making a decision about parenting arrangements the arbitrator must consider the best interests of the child. Arbitrator’s decisions must be consistent with laws concerning parenting arrangements, support for children or spouses, or family property.
Either party can appeal the award to the court if there is a question of law involved or a question of mixed law and facts. The court can always change an award in the same circumstances they can change any family law court order.
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.
— ~ Canada (Director of Investigation and Research) v. Southam Inc.
Once an arbitrator has been appointed the process can only be ended if both parties agree.
Collaborative Law Services
Collaborative law is a type of EDR where each party works with their own collaborative lawyer and other professionals who have been trained to negotiate fair and reasonable settlements. The parties must commit to reaching a settlement outside of the court process. They must agree that the lawyers will not represent them in court if no agreement is reached. If, however, the parties reach an agreement, the lawyers will work with them to obtain any required court orders.
Who are Collaborative Professionals?
To provide collaborative law services, lawyers and other professionals must:
- Be a member of Collaborative Professionals of Saskatchewan.
- Have at least 15 hours of conflict resolution training.
- Have at least 14 hours of collaborative process training.
- Have at least 14 hours of family violence training.
To begin the process the lawyers, other professionals, and parties all sign a participation agreement to set out the way they will work together. Under this agreement, lawyers and other professionals are disqualified from assisting the parties in the event the matter proceeds to court. The process is client-controlled with lawyers representing each party while guiding them towards reaching a settlement. Parties can decide to involve other professionals, such as accountants or psychologists to help with specific issues.
Because the parties both attend meetings, although collaborative law professionals and lawyers are present, this process may not be appropriate if there is family violence. This process also requires both parties to fully disclose all their financial information. If there is a strong chance that this will not happen this process may not be the best option.
Ending the Collaborative Process
Either party can decide to end the collaborative process at any time but none of the professionals involved can represent either party if later there is a court case.
For more information visit Collaborative Professionals of Saskatchewan.