In 2006 it became mandatory for all couples to attend family dispute resolution prior to filing an application with the court to determine custody. One of the aims of this legislation was to encourage parents to reach an agreement about parenting on their own terms, without the interference of the courts. After family dispute resolution is attempted, the practitioner involved in the process issues one of four types of certificates:
- A person did not attend family dispute resolution with another party because of the other party’s refusal or failure to do so;
- A person did not attend family dispute resolution because the practitioner considered that it would not be appropriate to conduct such resolution (having regard to matters prescribed by the regulations);
- A person did attend family dispute resolution and all attendees made a genuine effort to resolve the issue or issues;
- A person did attend family dispute resolution but the person or another party did not make a genuine effort to resolve the issue or issues
The court will consider these certificates prior to making a ruling in the case, and can also consider the certificates when assessing whether to order costs to be paid by a party.
Does that mean that you absolutely have to attend family dispute resolution and get one of these certificates before you can file a custody action?
Not exactly.
While the legislators voiced a clear preference for settling child-related matters through family dispute resolution, they also recognized six classes of cases in which family dispute resolution should not be required.
1. Application for Consent Order Pending
If parties are applying for a consent order, then they have already reached an agreement on how to handle child-related issues. Therefore, ordering the parties to attend family dispute resolution prior to filing an application for the consent order would be futile.
2. Violence and Abuse
Where the court finds reasonable grounds exist that demonstrate that there has been abuse or family violence, or that a risk of such exists, no compulsory family dispute resolution is required. The court will not force parties to attempt to achieve a resolution to their child-related issues if there is any history or threat of violence.
3. Contravention of Previous Order
A party can make an application to the court regarding a “particular” child-related issue, without attending dispute resolution, if there is already an order in place addressing said issue. For instance, if there is already an order in place setting forth a custodial schedule for the child, and one party is not abiding by the order, the complying party may apply directly to the court to seek enforcement of the order. If there is already an order in place, there is no need to utilize dispute resolution services to try and reach an agreement.
4. Application is Urgent
Sometimes a parent will have to make an urgent application to the court about a child-related issue. An example of this would be if a parent intended to relocate and take the child with them, in a situation like that the parties would need to have the issue addressed by the judge as soon as possible, spending time at family dispute resolution would simply slow the process down.
5. Incapacity
If a party lacks the capacity, physically or otherwise to attend family dispute resolution, the court will not enforce their attendance. For instance, if a party is unable to participate effectively because they live in another country, an application regarding a child-related issue could be made directly to the court even if no family dispute resolution has taken place. The rationale for this exception is that compelling attendance would be largely inconvenient; a party could make sacrifices to travel and attend dispute resolution only to not reach an agreement and have to subsequently travel again for litigation.
6. Other Circumstances
The final exception category is a catchall. If there is another reason set forth in the regulations that would allow parties to bypass family dispute resolution, that reason will suffice and allow parties to bypass compulsory dispute resolution.
The bottom line is unless your situation qualifies for one of these enumerated exceptions, you should be prepared to attend family dispute resolution prior to making an application to the court to determine custody or other child-related issues.
