Examining a lawyer's duty to advocate for alternative dispute resolution

There are many pitfalls to litigation and the court process. Court is expensive, stressful, and slow, and the result is normally a “winner-take-all” situation. This is precisely why in recent amendments to family law legislation, there has been a push toward dispute resolution. For example, in the Divorce Act and Family Law Act, lawyers are obligated to push for dispute resolution processes unless it would be inappropriate to do so (e.g. situations with family violence, non-disclosure of financials, etc.). The Divorce Act and Family Law Act state:

Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.))

Duty to discuss and inform

7.7 (2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act

(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;

(b) to inform the person of the family justice services known to the legal adviser that might assist the person

(i) in resolving the matters that may be the subject of an order under this Act, and

(ii) in complying with any order or decision made under this Act; and

(c) to inform the person of the parties’ duties under this Act.

Certification

(3) Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a legal adviser shall contain a statement by the legal adviser certifying that they have complied with this section.

Family Law Act, R.S.O. 1990, c. F.3

Duty to discuss and inform

47.3 (2) It is the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Part,

(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Part through an alternative dispute resolution process, as provided for under subsection 47.2 (1), unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;

(b) to inform the person of the family justice services known to the legal adviser that might assist the person,

(i) in resolving the matters that may be the subject of an order under this Part, and

(ii) in complying with any order or decision made under this Part; and

(c) to inform the person of the parties’ duties under this Part. 2020, c. 25, Sched. 1, s. 28 (4).

Certification

(3) Every document that commences a proceeding under this Part, or that responds to such a document, that is filed with a court by a legal adviser shall contain a statement by the legal adviser certifying that the legal adviser has complied with subsection (2). 2020, c. 25, Sched. 1, s. 28 (4).

Many courts, including the Supreme Court of Canada, have commented on such obligations and their importance. For instance, Colucci v. Colucci, 2021 SCC 24 said:

There is a trend in family law away from an adversarial culture of litigation to a culture of negotiation...Not only is encouraging settlement one of the objectives of the Guidelines, but recent amendments to the Divorce Act reflect this shift by requiring parties, where appropriate, to try to resolve family law disputes through family dispute resolution processes (s. 7.3). Parents should be encouraged — absent family violence or significant power imbalances — to resolve their disputes themselves outside the court structure and legal rules should be clear and accessible so they may reach fair agreements. Reaching a negotiated settlement not only saves resources but also reduces the need for future court applications by setting up a less acrimonious relationship between the parties...

Anaquod v. McLean, 2022 SKQB 134 added:

This duty to comply with s. 7.7 ought not be taken lightly or glossed over by counsel in their discussions with their clients. While not specifically required by the legislation, counsel may wish to familiarize themselves with available family justice service providers so that the information they provide and recommendations they make to their client have the best chance of assisting in resolution.

The Government of Canada has provided a “Family Dispute Resolution Fact Sheet”, where the different types of alternative dispute resolution processes are discussed. For instance, there is collaborative family law, a process where both counsel on file are retained to negotiate under the agreement that neither counsel can go to court. This understanding promulgates more effective negotiations because nobody is immediately threatening court if they do not get what they want. Mediation is where a neutral third party helps both parties discuss the issues and come to a mutually acceptable agreement. Arbitration occurs when the parties decide to hire a neutral third party to decide the case on the merits, but without the added time and stress of formal court proceedings. For more information on dispute resolution, click here.

Obvious takeaways? Lawyers have a legislated duty to advocate for an alternative dispute resolution process unless it would be inappropriate to do so. The push toward alternative dispute resolution recognizes the pitfalls of the court process and the benefits of a less acrimonious avenue to deal with family law issues.