A New Approach to Family Law Court Cases: Binding Judicial Dispute Resolution
Dec 5, 2022
In May 2021, the Ontario Superior Court of Justice launched a new alternative dispute resolution pilot for family law court cases: Binding Judicial Dispute Resolution (JDR). The aim is to reduce the backlogs in family court, and streamline resolution in family law court cases.
Initially launched in smaller communities like Simcoe, Muskoka, Cornwall, and the Northwest and Northeast regions of Ontario, it was later expanded to larger communities, including Peterborough, Lindsay, Cobourg, Oshawa, Ottawa, Newmarket, and most recently, Newmarket and Kitchener in November 2022.
Similar to encouraging mediation in family law cases and the Family Law Rights of Appearance Pilot Program, the legal system in Ontario is looking at ways to resolve family disputes that are quicker and less costly for both the government and the individuals involved in the disputes.
What Happens in Family Law Court Cases?
Typically, family law court cases begin with a case conference. The goal of the case conference is to ensure required documentation has been shared between both parties, and to determine whether some or all of the family disputes can be settled, even if for the short-term.
If issues cannot be resolved after the case conference, the parties proceed to a settlement conference where they present outstanding issues that remain in dispute. If there is still no agreement, the case may proceed to another conference, and ultimately to trial.
While this is a clear step by step process attempting to ensure parties resolve their disputes in a fair and balanced manner, the multi-stage system can be slow and costly. Court time, judges, and administration fees quickly add up in the system. Participants need to pay legal fees for all appearances if they are being represented by a divorce litigation lawyer.
Even worse? Many litigants are self-represented, and statistics have shown that 73% of self-represented parties lose their cases.
How Does Binding JDR Work?
After the case conference, the parties involved discuss whether Binding JDR might be appropriate in their case. Both parties must agree to participate in the Binding JDR process.
A Binding JDR hearing date is scheduled, and each party prepares and submits a sworn affidavit outlining the facts of their case, and draft orders with their proposals to resolve outstanding disputes. The judge and both parties discuss the issues and can ask questions. Lawyers can be involved as advisors, and in creating the affidavit prior to the hearing.
Binding JDR reduces the formality of family law court cases. The hearing combines elements of both a settlement conference and a trial. The judge is more involved and proactive, interacting directly with the participants. At the end of the process, the judge rules on the outstanding issues, and as the name of the hearing implies, the result is binding.
What Family Law Court Cases are Eligible for Binding JDR?
Binding JDR works best with simple family law cases, with hearings typically kept under 3 hours. Although Binding JDR can be used in cases relating to parenting, child and spousal support, and property division, if the case will require witnesses other than the parties directly involved, it may be too complex.
If the case becomes too complicated for Binding JDR, the judge can refer matters to a traditional court process under Family Law Rules to ensure a proper decision. In order to participate in Binding JDR, the following criteria must be met:
- The case must be filed in a jurisdiction participating in Binding JDR.
- The presiding judge must agree that the case is appropriate for Binding JDR.
- Both parties must agree to Binding JDR at or after the case conference.
Which is Best: Mediation, Negotiation, Litigation, or Binding JDR?
If you’re facing a family law court case, the best approach depends on the details of your case. Mediation is a similar process to Binding JDR where the two parties talk directly to each other with a third-party involved (in the case of mediation, a qualified family law mediator rather than a judge). The difference with mediation is that the involved parties make decisions with the assistance of a mediator, rather than a judge, and the decisions are not binding until the settlement is finalized byway of an agreement.
Negotiations, counsel assisted or otherwise, will also allow for the parties to create their own agreement to resolve all outstanding issues one by one.
When agreement cannot be reached in negotiations or mediation, the issues will need to be resolved in court. At that point, Binding JDR can be applied if appropriate, otherwise the parties will proceed through the litigation system.
Contact the Kelly D. Jordan Family Law Firm to Discuss Your Family Law Court Case
To determine the best approach for your family law matter, contact the Kelly D. Jordan Family Law Firm. Our team of expert family lawyers have a wealth of experience in negotiation, litigation, and mediation. They can advise you on your rights, help you understand the legal system, and provide creative legal solutions to your family law issues. Get started by contacting our office today.
