Ontario changes divorce protocol

  Jul 18, 201

Had Scott McLarty and his then-wife been forced to consider divorce mediation as an alternative to litigation, he might have been spared $15,000 in legal fees and a two-year court battle over spousal support.

A decade has passed since his divorce was finalized, and Mr. McLarty, who is now seeking to change the terms of his settlement agreement, finds himself in the family law system anew. This time, though, Mr. McLarty and his ex-wife were ordered to attend a two-hour information session on alternatives to going to court — part of a pilot program expanded on Monday to include all couples filing contested divorce proceedings in Ontario.

After a couple launches the court process, each spouse will be given a sheet regarding the mandatory information session. Their contested divorce proceedings cannot move forward through the system until the form is stamped with confirmation of their attendance.

“I think it would have been a catalyst for us to take a step back, take a deep breath, and see if there were things we could sort out on our own,” said Mr. McLarty, 57, of the demise of a 25-year union that was ultimately settled out of court to save money. “When you’re going through a divorce, you’re angry, you’re depressed, you’re in an ‘I want to win’ mentality. The information session encourages you to try to work together and come to a solution.”

By mandating the information session, and by subsidizing mediation for couples who choose to forgo litigation, Ontario has joined an international push toward mediation and away from costly, time-consuming and oftentimes nasty litigation. Britain and New York’s Nassau County recently joined states such as Utah and Florida in requiring that divorcing couples attend at least one mandatory mediation session.

And while Ontario has not gone to that extreme, these latest measures are similarly aimed at reducing court backlogs and the impact of legal disputes on people’s bank accounts and children.

“Some cases involve a long court fight,” Attorney-General Chris Bentley said in an interview. “This will give people a better sense of whether it’s worthwhile having one.”

In hindsight, Mr. McLarty said probably not. And the Barrie, Ont.-based business analyst thinks the bulk of those at his April session at a Simcoe County courthouse might well come to the same conclusion.

“My impression, looking around at the room of 40 or so people, was that maybe 50% of them could figure things out outside the courtroom,” he said of the program, which expanded from 17 family court Superior Court branches to more than 50 courthouses on Monday. “I’m hoping that this time we’ll try to settle (the terms of our agreement) in mediation, but we’ll see if (my wife) agrees.”

More than 70,000 couples file for divorce in Canada each year, and while the numbers have been relatively stable since 2001 — spiking at 74, 681 in 2006 and then falling again to 70, 226 in 2008 — the Ontario family court system is backlogged and wait-times are lengthy. The Office of the Attorney-General estimates that more than 160,000 people use the province’s family courts each year.

Expanding the pilot program, paid for by cost-savings within the department, will cost $7.3- million annually, Mr. Bentley said.

Deborah Mecklinger, a Toronto-based divorce coach and mediator who practised in Florida right after mediation became mandatory there, said she often hears couples say they wish they would have tried mediation. Still, she said not everyone is cut out for the less-adversarial approach.

“Mediation requires two people who are interested in a win-win solution,” she said. “That’s not true of all divorcing couples.”

Indeed, the divorce community is divided on mandatory-information sessions and subsidized mediation, alternatively lamenting that the measures go too far or not far enough.

Some argue that those who are amenable to mediation are already heading down that path — that the cases clogging the system are the intractable ones featuring stubborn couples who will fight to the end, no matter the cost.

Others, such as Toronto-based divorce lawyer Brian Ludmer, say federal legislation needs to be overhauled to introduce equal shared parenting, a move he said would post a legal hurdle so great that couples would forgo a nasty custody battle altogether.

Still others espouse an even more dramatic solution, one they say will not only reduce the number of couples divorcing in court, but the number of couples divorcing, period.

“I think there should be an information session before people even get married,” said Dan Couvrette, CEO of Divorcemagazine.com and head of Divorce Marketing Group, an agency dedicated to helping divorce professionals grow their practices. “Maybe we should give people some training on how to be in a relationship.”

But Grant Gold, immediate past chair of the Canadian Bar Association’s family law branch, said he welcomes the latest rules, having seen first-hand as a volunteer session-leader that minds can, indeed, be changed.

“On applicants’ night, they’re all kind of gung-ho because they started this whole thing and they want the divorce,” he said of the sessions in Toronto, which launched its own program within the Superior Court system several years ago. “On respondents’ night, you see people who are all uptight and cranky that they have to be there. But by the end of the two-hour session, you can see people’s shoulders go down…. You hear people saying their eyes were opened to different processes.”

National Post