New Legal Duty for Parents: Try to Avoid Going to Court

When clients come to us for legal advice, they are often in the throes of heightened conflict. Their family is breaking down. Their ex-partner is being unreasonable. Their children are suffering. They are often geared up for a fight and they want their “day in court”.

This state of mind is understandable. Going through a separation is extremely difficult. But, recent changes to family law legislation – the first major changes in over 20 years! – explicitly recognize, perhaps for the first time, that the court system is generally not the best way to resolve family disputes.  

As of March 1, 2021, both the federal Divorce Act (for married parents) and the provincial Children’s Law Reform Act (for non-married parents) include specific duties that parents must fulfill when they are going through a family breakdown. Parents are obligated to:

• always act in the best interests of the children, 
• do their best to protect and shield children from the adult conflict, and 
• try to settle conflicts through a “family dispute resolution” process rather than through court proceedings. 

Family dispute resolution processes include, for example, direct negotiation between the parents and/or their lawyers, mediation through a neutral third party, or collaborative family law. The legislation does recognize, however, that family dispute resolution processes may not always be appropriate, such as when there has been family violence. 

The changes also include new duties for lawyers, including a duty to encourage clients to try family dispute resolution processes. The amendments reflect that our role as family lawyers is changing. There is no place anymore for “pit bulls” in the family law courtroom, or “winners” and “losers”. Our role is to do the hard work with our clients to help parents redefine their family structure in a way that allows them and their children to move forward.

Madison Goodacre, Family Law Lawyer, Siskinds