Effective May 14, 2021
This practice advisory applies to family law cases in the Superior Court of Justice in the Simcoe, Muskoka and Cornwall Superior Court of Justice, Family Court Branch and to Superior Courts in the Northwest and Northeast regions.
This pilot has been developed to provide a streamlined way to reach a final resolution of less complex family law cases, consistent with the objectives of the Family Law Rules as expressed in subrules 2(2) to 2(5). It is also being launched to help address significant backlogs in family cases that have arisen as a result of COVID-19.
Parties in the above locations may now, on consent, choose to participate in a Binding Judicial Dispute Resolution (Binding JDR) hearing to reach a final resolution of their family law dispute more quickly and through less formal processes.
What is Binding Judicial Dispute Resolution?
In Binding JDR, the judge meets with the parties (and their lawyers, if any) to explore possibilities for resolution. Each party is expected to explain their proposal to resolve the outstanding issues as well as the key facts that support their position. If the parties cannot reach an agreement, the judge will hear from both parties regarding the orders that they are seeking. The judge may ask questions and request additional information from the parties, if necessary, to reach an informed and fair decision. The judge will also be able to hear anything that they consider important and relevant to the issues that need to be decided, regardless of the formal rules of evidence. At the conclusion of Binding JDR, the judge will provide a final decision on all outstanding issues, including those that have been resolved on consent.
Unlike at a Settlement Conference, at Binding JDR the parties explicitly request that the same judge that assists them with trying to resolve their case makes a final decision for them regarding any issues that they cannot resolve on consent. The parties specifically waive any objections that they may otherwise be entitled to raise pursuant to subrule 17(24) of the Family Law Rules, which indicates that a judge who has conducted a settlement conference should not then decide the issues.
Cases that are suitable for Binding JDR
While all cases relating to parenting, support and division of property can potentially be resolved by Binding JDR, this process is intended for less complex cases that do not involve witnesses other than the parties. It is also more appropriate for cases where there are a limited number of issues or where the parties have substantially agreed on the facts and only require a determination regarding the application of the law to their circumstances. Examples of cases that would likely be suitable for Binding JDR are settling terms of a parenting plan schedule; reasonableness of and responsibility for special or extraordinary s. 7 expenses; quantum or duration of spousal support; or ruling on a few specific items in a net family property calculation.
Binding JDR is not appropriate unless all necessary financial disclosure or other information has already been exchanged or the case conference judge can expect that it will be exchanged prior to the scheduled hearing. Binding JDR is also not appropriate where there are significant credibility issues that require cross-examination by the other party. In addition, because of time constraints, cases that require more than 2 to 3 hours of hearing time are likely not appropriate for this pilot project.
Because a limited number of Binding JDR hearings are available, and to ensure that participating cases meet the above criteria, the court must approve each request for a Binding JDR hearing. This will usually be done at the case conference.
Legal advice about the process
If not represented, parties are strongly encouraged to obtain legal advice about the process before requesting to participate. Free legal advice may be available through Legal Aid Ontario (LAO). The Notice to the Profession about this project in your region includes information about what services are available, some of which are only available to parties who qualify financially. Alternatively, advice is available from family lawyers who provide limited scope services. Information about these services is available at www.familylawllss.ca and in the Notice that applies to each participating location.
How to schedule a Binding JDR
Parties who wish to participate in Binding JDR should take the following steps, which can be done at the case conference or after one has been held:
- Complete the Request and Consent form (separate forms for each party) to confirm that they understand and agree to use this process to reach a final disposition in their case; and,
- Submit both Request and Consent form the Court as directed in the Notice for each participating location.
Once the parties’ request has been approved, one of the parties should contact the Trial Coordination Office to schedule their Binding JDR hearing at a time convenient to both parties.
What needs to be filed for a Binding JDR hearing?
After the hearing has been scheduled, each party must file an affidavit of no more than 10 pages that sets out the key facts in support of the order that they are seeking and their proposals for resolution. Parties may use the Affidavit in Support of a Binding Judicial Dispute Resolution hearing or adapt the Form 14A Affidavit (General) to provide similar information.
Parties must swear or affirm that all statements in their affidavit, as well all statements that are made during the hearing, are true and can be relied upon by the judge in making a decision. If necessary, this affidavit can be sworn or affirmed at the hearing.
Parties may include attachments to their affidavits such as Children’s Lawyer Reports, financial statements, comparative net family property statements and support calculations that will not form part of the page limit for these documents. If the court is not likely to have access to the complete court file due to COVID-19 restrictions, copies of other court documents such as applications and answers; financial statements, 35.1 affidavits and prior court orders may be requested by the court. Additional supporting evidence that is needed for the fair adjudication of the case such as paystubs, Income Tax Returns and valuations must be disclosed to the other party in advance and brought to the hearing but do not need to be filed with the court in advance.
The parties must also file a draft order that can be edited by the presiding judge containing all their requested terms so that it can be signed by the judge at the end of the hearing, if ordered. Standard clauses that may assist in the preparation of draft orders are available at: http://ontariocourtforms.on.ca/static/media/uploads/courtforms/family/clauses/standard-clauses-for-orders-feb2021-en.doc or in your region (see the Notice for each participating location).
The affidavits and draft orders must be served and filed at least 20 days in advance for the applicant or moving party and at least 10 days in advance for the respondent or responding party.
Decisions from Binding JDR
Even with the court’s prior approval of Binding JDR, the judge hearing the event retains the discretion to convert the hearing to the regular process under the Family Law Rules, if the judge feels it is necessary to deal with the matter fairly and reach a proper decision.
Because this is intended to be an expedited process, it is anticipated that the judge will explain to the parties orally why the decision was reached and provide them with an endorsement containing the terms of the order, so that the parties can have an order issued quickly following the hearing. Detailed written reasons for decision should not be expected.
The expected benefits of this pilot are quicker, simpler and less costly processes to obtain a final order for straightforward family law disputes. Until it is safe to offer in-person hearings, Binding JDR hearings will be conducted virtually through the Zoom platform. The pilot will be evaluated after 1 year. Participants are encouraged to complete an anonymous survey to assist in evaluating the pilot.
Dated: May 10, 2021
Superior Court of Justice