In May of 2021, the Ontario Superior Court launched a pilot project to explore a new dispute resolution option for litigants known as binding Judicial Dispute Resolution or "JDR." The pilot project is detailed in the Practice Advisory linked here.
Currently, the JDR process is available to family law cases in the Superior Court of Justice in Simcoe, Muskoka, Cornwall, Ottawa, Oshawa, Kitchener, and the Northwest and Northeast regions.
The intent of the pilot project is to provide families with "a faster, simpler, less acrimonious and more cost-effective way of resolving family law issues, as compared with a trial."1 The goal is to promote the primary objective under the family law rules: to deal with cases justly.2 Part of dealing with cases "justly" includes saving expense and time.
Under the JDR process, a brief hearing is held in lieu of the traditional trial route. The parties and the judge meet to explore possibilities for settlement, and any issues not settled in those initial discussions are then adjudicated by the same judge in the second half of the hearing.
Despite being in place for over 19 months, not much has been heard or published about this project or the cases following this dispute resolution path. That is partially due to the nature of the project - if the settlement portion of the process is successful, negotiated settlements don't generate reported decisions; and if the binding decision-making portion is required, the project intends that an order is drafted that day by the presiding judge; there are not detailed reasons released. However, the lack of information poses a challenge for litigants who may benefit from the JDR process but either don't know about it or are hesitant to explore a new process without knowing more.
Fortunately, Justice Madsen recently published an Endorsement, cited at M.D. v. C.S., 2022 ONSC 6671, which provides a helpful overview of the JDR process and its unique aspects. While acknowledging that the Endorsement is not necessary, Justice Madsen chose to release one, with the consent of the parties, in order to help other families decide whether this would be a useful process for them. That decision highlights the key considerations that can help litigants who may be interested in JDR decide whether it is right for them and their case.
IS MY CASE ELIGIBLE FOR JDR?
The JDR process is voluntary, meaning that both parties have to agree to ask the court to engage it. In addition, a judge must agree that the case is appropriate for JDR and order it. The parties can ask for such an order at a court attendance or by 14B motion. In deciding whether theirs is a case that might be appropriate for JDR, litigants should consider the following:
- How complex are the issues? JDR is meant for cases with few issues that are not legally or factually complex. The time available to parties at a JDR hearing is very limited, generally not more than one day.
- Is credibility a significant concern? The format of a JDR hearing does not allow for cross-examination of witnesses, which restricts the ability of the court to make determinations of credibility.
- Who has the relevant evidence necessary to decide the issue? The parties are the only sources of evidence in the JDR process. Cases with multiple witnesses would not be appropriate for JDR. However, as set out below, expert reports can be relied on without calling the experts as witnesses.
- Is disclosure going to be an issue? All necessary disclosure must already be exchanged, or the parties have a plan to exchange disclosure prior to the hearing. There cannot be any outstanding issues regarding what will be disclosed by either party.
Parties who want to participate in JDR each submit a Request Form and Consent, which details which issues have already been resolved, which issues still need to be resolved and sets out the parties' eligibility and agreement to the unique structure of the process. A copy of the form is available here. If the parties and a judge agree the case is appropriate for JDR, a hearing is set.
At the hearing, much like a Settlement Conference, parties will be given the opportunity to discuss the issues and their positions with the judge, get feedback from the judge on the strengths and weaknesses of their positions and receive assistance in crafting possible resolutions.
In the event that parties are not able to settle all the issues between them, any unresolved issues move into the adjudication portion of the hearing, and the parties have the opportunity to make submissions, and the judge may ask questions to get additional information from the parties. The objective is that by the end of the day, the parties will have an order - either reached by settlement, ordered by the judge, or a combination of the two.
WHY PARTIES MIGHT CHOOSE JDR
There are a lot of benefits to this process, especially as the courts have been backlogged due to COVID-19-related restrictions.
- The process is faster than the traditional trial route: JDR is designed to be efficient. The hearing is time-limited, and (depending on what point in the case JRD is agreed to) steps in the traditional litigation route can be skipped, such as a settlement conference or trial management conference. In v. C.S., the parties were anticipating a 5-day trial on the same issues that were resolved in one day of JDR.3
- A simpler, more efficient process is less expensive: A shorter hearing requires less preparation than a traditional trial and fewer court attendances. The cost to the parties is less, both in legal fees and in time off work. Additionally, while parties are each encouraged to have counsel in JDR, the process is more informal, less legal argument focused, and the rules are relaxed, making these hearings more approachable for those who want or need to be self-represented.
- The parties have an opportunity for creative problem-solving with the help of a judge: Where possible, the parties are empowered to craft their own resolutions, and the presiding judge is there to help. The issues and the solutions don't have to be dealt with under a strictly legal" lens but can be practical and creative to find what works best for the families and children involved. Justice Masden commented in M.D. v. C.S. that the issues between the parties were not issues where legislation and case law provided much guidance.4Nonetheless, the parties, counsel, and the judge were able to work together to craft a consent that worked for this family and dealt with most of the items at issue.
- The process is meant to be less adversarial: JDR is "more interactive and less adversarial" than traditional litigation. One of the reasons the parties in M.D. v. C.S. chose the JDR route was that they felt an adversarial trial would make the conflict between them worse.5They are the parents of a young child, and minimizing conflict was to their child's benefit.
WHY PARTIES MIGHT NOT CHOOSE JDR
Despite the benefits above, choosing a process that prioritizes saving expense and time requires trade-offs against the formal procedural protections normally built into the adjudication process. Parties interested in the JDR process should also be aware of and understand the limitations of this structure.
- Each party has a very limited amount of time to make their point: While the short process is also a benefit, it means that parties need to be efficient and focused with their submissions, and the issues need to be narrow. For example, Justice Madsen confirmed that in Kitchener, JDRs are scheduled for only a ½ day: 90-120 minutes are intended to be for settlement discussion, and then 90-120 minutes are allocated for submissions in the adjudication portion.6The court can adjust these times depending on how the hearing is going, but 90 minutes is not much time to deal meaningfully with multiple issues. Similarly, the affidavit evidence that each party is allowed to submit is restricted to 10 pages, which is not a lot of space.
- The same judge will be hearing the settlement discussions and then deciding on an outcome: Subrule 17(24) of the Family Law Rules provides that a judge who has heard a settlement conference cannot then hear the issue at trial.7 Settlement discussions and the positions taken for settlement purposes are meant to be confidential and without prejudice. In the JDR process, the parties agree to waive that subrule and specifically ask that the same judge who hears the settlement negotiations then adjudicates the unresolved issues. The process also specifically allows. This is also seen in mediation-arbitration processes. However, unlike in med-arb processes, the JDR judge can rely on the settlement discussions as evidence. All statements made during the JDR hearing, whether during settlement discussions or in the adjudication phase, are evidence that may be relied on by the court.8That means that all settlement discussions are technicallywith prejudice, and the court can consider them rather than without prejudice, as is normally the case with settlement discussions.
- The traditional rules of evidence do not apply: In addition to the above, parties in JDR also waive their rights to the strict application of the rules of evidence. It is part of the consent that they sign when applying. For example, the court may rely on expert reports without calling those experts as witnesses. Evidence is elicited through affidavits from each party, the exhibits thereto, and anything said in either phase of the hearing. Neither party is cross-examined on his/her/their affidavit. The judge can ask questions of either party to get more information and consider anything he/she/they think is "important and relevant to the issues that need to be decided, regardless of the formal rules of evidence."9
- Case law is limited to no more than a few cases if any.If a party (or their lawyer) intends to make a detailed legal argument or deal with nuanced points of law and want to rely significantly on case law, this is likely not the process for them. The decision is meant to be made the same day and does not require a detailed review of jurisprudence by the judge.
These procedural concerns may be significant, especially from the perspective of lawyers who are used to the formal trial process and the strict rules it follows. However, for the right type of case, this can be an efficient means to get to a resolution for clients who don't have the time or money for drawn-out litigation and aren't looking for resolution of complex legal issues. It is a practical and approachable structure that has the potential to help a lot of families resolve their conflicts. Hopefully, this project will get more attention and interest from parties.
More information is available about JDR in the applicable Notice to the Profession that each court or region where this pilot project is running has published. Litigants who are interested in learning more about this process and whether their case may be eligible should read the applicable practice direction for their court (linked above), as each court may have different rules about what services are available and the eligibility requirements.
1 M.D. v. C.S., 2022 ONSC 6671, at para 4.
2 Family Law Rules, O Reg 114/99, s 2(2),(3), and (5).
7 Family Law Rules,O Reg 114/99, r. 17(23-24).
9 Practice Advisory Concerning the Superior Court of Justice's Binding Judicial Dispute Resolution Pilot Projects
Effective May 14, 2021 (most recently amended November 1, 2022)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.