As the summer of 2022 comes to an end, the courts are slowly but surely returning to some sense of normalcy that existed pre-pandemic. One of the indicators of this return to normalcy is the return of, and the recent expansion of, the Dispute Resolution Officer (DRO) Program. Although it is not yet available in all Ontario family courts just yet, for those of you who may be required to make a court appearance before a DRO, I thought it would be a good idea to briefly explain what is entailed in this program, the benefits of it, the limitations of it, and then offer some tips to successfully advocate before a DRO.
Before I go any further, let me advise all of you reading this blog that, as of the date of same, I am a Dispute Resolution Officer (DRO) for the Hamilton and Welland Family Courts. It is a very modestly paying position, and I sincerely enjoy each time I am assigned as a DRO. I believe that is has helped me become a better lawyer for my clients. I have seen many examples of strong written and oral advocacy, and (unfortunately) just as many examples of what to watch out for. I will do my best to share what I consider the best practice tips with you, whether you re a lawyer, a client, or a self-represented litigant.
What is a Dispute Resolution Officer?
A Dispute Resolution Officer (DRO) is a senior family law lawyer with proper expertise and experience to act as neutral third party on some family law case conferences. These lawyers have submitted their names for consideration voluntarily, or they have been asked by the local judiciary to submit their names for consideration. Once they are vetted and approved, they are added to a local panel roster of DROs for that particular courthouse. In some cases, a lawyer may be on multiple DRO panels (as I am).
What Is the Role of the DRO?
The DRO will act as an independent and knowledgeable third party who can offer the litigants their own opinion as to how a court would likely resolve the matter, based on the information provided to them in the briefs. When I conduct a DRO conference, I often tell the parties and their lawyers (if any) that, as a senior lawyer, I am offering them a “neutral sneak peak” into what a court is likely to say/order at a later date.
It is intended that such information will hopefully act as springboard or catalyst towards settlement discussions of some or all of the issues. I will have more to say about this later in the blog.
What Cases Are DROs Assigned To?
Up until recently, a DRO would only be assigned to cases involving a party or parties who have started a motion to change a previous court order or agreement, such as a motion to change child support, or a motion to change the terms of a person’s parenting time. However, it has just been announced that the DRO program will be expanded to now include DROs handling matters that started by way of an initial application for court orders.
At What Stage of the Proceedings Will DROs Be Used?
At this time, DROs appear at the case conference stage, which is the second step of the proceeding, following either the first appearance date or after the exchange of pleadings (if there is no first appearance date).
By way of illustration, after a party serves and files a motion to change a court order or agreement, the court will assign a first appearance court date for the parties to attend. At that first appearance, if the responding party has not filed their responding documents, and needs more time to do so, the parties will likely adjourn the matter to another appearance date (usually a clerk, but it can be in front of judge, depending upon the court). If the responding party has filed their responding documents, the parties can then schedule a case conference in front of the DRO. How far away will this court date be? Well, that varies from courthouse to courthouse (in Hamilton, it can be 6 to 10 weeks away, and in some other courthouses, it’s 8 to 12 weeks away).
What Do the Parties Need to Do to Prepare for the Case Conference?
Like any conference, each of the parties must file a case conference brief at least a week before the DRO conference date. This court form sets out the basic background of the parties, the issues to be discussed at the conference, the important facts that the DRO needs to know, and the position of each of the parties moving forward regarding both the substantive issues and procedural ones. What I mean by this is that, for example, if your case involves child support, and you need more financial information from the support payor/the other party, you will set this out in the brief. You would also set out a simple offer to settle, if you have enough information on which to propose such an offer. Sometimes, you may not be able to do so, and you would advise the DRO of same in the brief.
What Does the DRO Do at the Case Conference?
At the DRO conference, whether virtual or in person, the DRO will lead the matter. They will introduce themselves, explain who they are and their role, explain the confidentiality of the process, and remind everyone that they are acting as a DRO, and not a judge. As such, the DRO cannot make any order at the conference, whether it deals with the substantive issues or it is something procedural.
However, a well-prepared DRO will have read the briefs in advance, made notes of the salient facts and issues, and then they will offer each party (or their lawyer) a chance to provide any other information to them, before they offer their comments. Once both sides have had a chance to speak with the DRO, the DRO should then provide the parties with a very clear and direct opinion on the strengths and weaknesses of their case. The DRO should tell each party:
a) What the law is regarding the issue/issues;
b) How the law will likely be applied to the facts of their case;
c) The likely conclusion that a judge will reach, if this matter proceeds;
d) The likely consequences if they proceed further with this matter, including the risk of cost consequences;
e) Canvas opportunities to settle some or all of the issues; and, failing that,
f) The next steps to be taken, both in and out of court.
For those of you who have been in front of a DRO already, you may have found that it did not proceed this way. Much like judges, each DRO has their own way of doing things. I am a firm believer in telling a party who it is, or how likely it is, rather than to sugar-coat the matter, or to give someone false hope. I have my style, but not everyone agrees. If I were involved in a family law matter, I’d like to know what my chances of success are, or are not, so I could decide how much further to go with the matter, and decide how much time, effort, money and emotional strength I would need to invest.
You hay have noticed that I used the word “likely” on several occasions in the preceding paragraphs. I did so intentionally. As I am lawyer, I can only offer you potential and realistic options/information along a spectrum of possibilities. As an experienced lawyer, I can help narrow that spectrum, but I am not the one making the final decision. I do not like gambling with my clients’ lives, so I offer them firm legal opinions that are usually not too far off from what will likely happen in court. That is what the expect of me, and so that is what I provide. I also feel as strongly about that in my role as the DRO.
What Happen Next?
Depending upon the advice given, and the willingness or unwillingness of the parties to heed that advice, several things can happen to determine next steps:
- If parties are willing to settle, I may hold the matter down to allow them to draw up temporary or final terms of settlement, whether they cover one or all of the issues, or even to address procedural issues such as the need for further financial or other disclosure, e.g. proof of loss of employment, receipt of EI benefits, updated medical information to confirm inability to work, etc.
- If parties have settled some or all of the issues, then I contact the trial coordinator and advise them to place the matter before the back-up judge, who is on “standby” to make orders in just such cases. Usually, it will be set within a half-hour or hour following the DRO conference, but it is well worth the extra time and effort.
- If the parties want/need information about mediation, I will advise of same, and canvas whether they wish to proceed to use the on-site mediation services. As of the writing of this blog, most of the on-site mediation services are not operational in the courthouse, but I still provide the parties/lawyers the contact information to get the ball rolling.
- If the parties cannot settle, then I contact the trial coordinator and I offer the parties the chance to schedule the next court date, which is usually a settlement conference. If there any conditions that need to be met before the next court date, I will set that out for the parties as well, e.g. filing updated court forms (the settlement conference brief), or provide updated disclosure. If one or more of the parties plans to bring an interim motion to address an issue before the next court date, I will discuss what needs to be done for that to take place. Again, I will take this time to remind the parties to re-think their positions (where appropriate to do so), to have settlement discussions, and to present formal written offers to settle, for future costs arguments.
Just as with any conference I am involved in with my own clients, I want the DRO to tell both clients directly what is realistic, and what is a pipe-dream. When I am DRO, I get many parties who come to me at the conference who are completely ill-informed about the laws of Ontario and Canada as it pertains to family law. I see it as my duty, as the DRO, to correct that mis-information, as difficult as that sometimes may be. They may think the laws are unfair, they favour one gender over another/others, or are politically motivated. I don’t get into such entanglements – that is not my role. But whether they like it or not, I will set them straight on the law as it currently is, and not as they want it to be.
Finally, once the conference is held, I will report back to the trial coordinator on who attended, what took place, and on next steps.
I have offered you some insight into this critical step in the family law case management system, so you can be better informed and better prepared to make the most of your DRO court attendance. After all, it is your life, your family, and your time/money that is being spent. So spend it wisely.