Introduction

It should come as no surprise to anyone that there is a backlog of cases set to be resolved in the judicial system, whether it be civil, criminal or family. I could not do justice to the problem to try and give a simple explanation as to why it is this way, or what can be done to fix it. That is beyond my scope as a lawyer, and the scope of this blog. It is now common for a family law case to wait 8 to 12 months from the last judicial conference to be heard for trial. Every agrees that the delay is not right. But there are people who are trying to fix the problem, especially in the area of family law.

This blog will deal with the relatively new option of binding judicial dispute resolution. It started out as a pilot project in select Ontario courts a few years back, and after working out through some of the bugs in any new process, it is being rolled out in further court locations. I will discuss what exactly it is, what’s involved, who can make use of it, and how it can help parties (and the court system) navigate the family court case quicker than the traditional systems of family law litigation.

Brief History

In the mid/late 1990s in Ontario, there was massive case management reforms and an expansion of unified family courts, to tackle the log jam of family law cases that were not moving efficiently through the courts. Most, if not all, family court stakeholders applauded the changes, and it was expected that cases would be able to move from beginning to end in a year or so. The Family Law Rules and Forms were created to help simplify the process, including having one case management judge to deal with cases as “the traffic cop.” It was believed that such a reform would result in less litigation and more settlement discussions, which would lead to more cases resolving without going to trial. Anecdotally, this worked, as only 3% to 5% of cases actually go to trial.

But much like the prematurity of the “Mission Accomplished” banner being displayed by American President G. W. Bush in 2003/2004, the family court system was not magically transformed. There were definite improvements, but still there were too many cases not being moved along the path to a resolution quick enough. AS markedly different than any other type of litigation, family laws litigation deals with people who are managing, or not managing, separations and divorces. With this added emotional component, people are simply not as likely to settle cases quickly and efficiently, even though common sense would suggest that it would be best for all involved to resolve cases quickly, amicably and affordably. It is common that one litigant is not ready to move forward with the realities of a separation or divorce, and as such, there are some who need to take it slow, for a multitude of personal or strategic reasons.

As such, what was expected to take a year is now taking 18 to 24 months, if not longer, to resolve, and we are now seeing the resulting stress fractures: the rules do not reflect the realistic timelines, the number of judicial officers is insufficient to manage the overload of cases, there are an insufficient number of family law lawyers who can help clients who struggle to afford lengthy family law proceedings, and as a result, the number of unrepresented and self-represented clients going through the courts has proliferated. If everyone in the system know how the system worked and could manage it without much help, it would better (not perfect, but simply better). But much like walking behind toddlers and young children who are learning to walk, those family court litigants behind them must now be forced to slow down to avoid collisions, resulting in a gridlock we find ourselves in today.

A New Hope – Binding JDR

As a result of the realities of the current system, the powers that be created a new “off ramp” for people to take, to avoid the rush hour traffic jam. It’s called binding judicial dispute resolution (“Binding JDR”), and it gives clients the option to bypass the road ahead and go straight to a combined settlement/adjudication process. It allows the parties to resolve their case at one half-day hearing (or less), without the parties needing to complete extensive motions, examinations, and multiple conferences. But with all off ramps, it is not meant for everyone to use, as it may not suit the needs of the parties or their case. So let me explain what it is and you can decide whether it is right for you.

Eligibility

To seek a Binding JDR, the parties must meet the following criteria, or otherwise have completed the following steps:

1. The parties must have completed a case conference;
2. The parties must both agree that the court can fairly decide their case in a hearing of three hours or less; and,
3. The parties must both agree that the court can fairly decide their case based only on the evidence of the two parties, without the need for cross-examining each other.

In reviewing these criteria, it should be clear to everyone that the issues in dispute must be fairly straightforward to allow a judge a Binding JDR to decide the dispute within affixed limited timeframe and with limited evidence. The judge will be laser focused on only what is relevant to the specific issues in question, and the evidence to be represented must be quite straight-forward and easy to present for a judge to make a binding decision.

What Cases Are Ineligible for Binding JDR?

Binding JDR is not available for cases brought under the Child Youth and Family Services Act (child protection cases), or for cases involving international child abduction.

Any other family law case can potentially be resolved by Binding JDR, however, subject to the discretion of the judge, the process is not generally suitable for the following cases:

1. cases where financial disclosure has not been exchanged prior to the hearing;
2. cases that require witnesses other than the parties;
3. cases where there are significant credibility issues that require cross-examination by the other party(ies);
4. cases that involve one or more vulnerable parties.

When Can It Be Sought?

The parties can decide if this case is a proper one for Binding JDR at the case conference, or sometime thereafter. If you think that the case may have the elements of being JDR-eligible, it is recommended that you raise the issue at the case conference, and thus, it should be addressed in the parties’ case conference brief. In a perfect world, both counsel, or both parties, would have a brief discussion about this issue prior to the case conference. However, as we do not live in a perfect world, it is more likely that one of the parties may raise the option at the case conference, or the judge may even present the option to the parties at the case conference, if they have not considered it themselves. This will then likely lead the lawyers or the parties, to have a discussion about this issue at or after to the case conference.

How Can It Be Sought?

If the parties agree that Binding JDR is right for them, the court will require them to complete a form that sets out that they have considered the option and would like, to move forward with Binding JDR. On the form, the parties will indicate that:

• They understand the Binding JDR Process
• They identify the issues that have been and need to be resolved
• They give undertakings about next steps they need to complete before the hearing, including the documents they must file in advance of the hearing
• They acknowledge, understand, and consent to the process and accept that there will be a final decision made
• They have sought legal advice about the process and their rights, where the parties are not represented by lawyers

The Hearing Itself

Once the paperwork is filed, the parties will be given a date for the Binding JDR Hearing by the court. At this time, it is unclear whether the date needs to be confirmed by way of filing a Confirmation form. This may be re-evaluated over time or addressed by way of a local practice direction.

The JDR hearing will have two distinct parts to it:

Part 1 – the judge will first hear the parties’ proposals and discuss possible resolutions.

Part 2 – if the parties cannot agree about some or all of the terms of their final court order, the same judge will then make a final decision about any outstanding issues, based only on the affidavits of the parties and what they have said in the JDR hearing.

Advantages and Disadvantages

There are several advantages to making use of the Binding JDR process:

1. Time – if your case is eligible, you will be able to forego all of the other steps that are normally involved in a typical family law case that goes to trial. For sake of illustration, please see the following timetable for such cases:
   1. Filing/Receiving Application to the First Appearance = 2 months from start of case
   2. First Appearance to Case Conference = 4 to 6 months from start of case
   3. Case Conference to Settlement Conference = 6 to 12 months from start of case
   4. Settlement Conference to Trial Management Conference = 12 to 18 months from start of case
   5. Trial Management Conference to Trial = 18 to 30 months from start of case

2. Cost – the concurrent costs of proceeding to a trial are saved if you can settle your case early on. As with time frames, and for the sake of the illustration, please see the following cost projections for contested family cases (and these are only base-level estimates):
   1. Filing/Receiving Application to the First Appearance = $3,000 plus HST
   2. First Appearance to Case Conference = $1,500 plus HST
   3. Case Conference to Settlement Conference = $1,500 plus HST
   4. Settlement Conference to Trial Scheduling Conference = $1,500 plus HST
   5. To Bring/Defend a Motion = $400.00 per hour plus HST (preparation, negotiation, attendance at motion)
   6. Trial Rate = $4,000 plus HST for every day of trial scheduled

3. Peace of Mind – if you can resolve the matter early on without dragging the matte rout and incurring excessive e costs, then most people will acknowledge that, although the court process is not an easy process to go through, they achieved peace of mind after Binding JFDR in getting to a final resolution. As we know, every case will eventually resolve, so if you can control your costs and time spent, you have done well.

But there is major disadvantage to this process, other than the fact that not all cases are ineligible for same. The reason that some cases are excluded from the Binding JDR process is that the amount of evidence and the complexity of the case (both from a legal point of view and a human emotion point of view) do not lend themselves to be resolved in such a quick and dipositive manner. In today’s world, we all want quick and fast, whether it be going through a fast-food drive-throughs, ordering products and services online, or spending our disposable income on entertainment.

But some services, like healthcare services and legal services, are not amenable to this quick mode of service. Given the seriousness and life-altering consequences of both services, we must heed the expression of “haste makes waste.” We cannot rush though a medical exam and have the diagnosis, options, and the path to wellness taken in moments. We have not reached that level of “Star Trek” medicine.

By the same token, we cannot rush through the legal process of looking at the facts, identifying the issues, considering all of the necessary/reliable the evidence and reaching a conclusion in matter of mere moments. Granted it should not take 2 to 3 years to resolve a case, by the same token, if we try and speed through the process to save both time and money, chances are one will ignore important facts, miss important issues, ignore crucial evidence, and thus reach the wrong conclusion. It is agreed that “justice delayed is justice denied,” but the flip-side of that idiom is “justice rushed is justice hushed.” No one wants that, either.

Conclusion

As such, we can all appreciate that there is a new option for parties to consider when deciding how to resolve their family law dispute. Take the time to look into and decide if its right for you. But please also consider the option of staying out of court in the first place via drafting a binding agreement, mediation, and/or the collaborative family law process. Decide what is most important for you – well spent time, money, and the establishment of a suitable post-separation reality/routine for all, vs. exacting revenge, punishment, spite, retaliation, which will result in and mutually assured decimation post-separation. The choice is yours.

Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289-799-3080 or email me at carm@runcolaw.ca.