Do You Have to Attend Mediation Before Family Court in Alberta?

If you are separating, you may have heard that you have to go to mediation before you can go to court. The real answer in Alberta is more specific than that, and it depends on where you live, what you are asking the court for and how urgent your situation is.

This article explains the dispute resolution step that applies before many family applications, the separate duty in the federal Divorce Act, and the exceptions for urgent matters and safety concerns.

This article covers the law of Alberta.

The short answer: a step to attempt, not a promise to settle

Alberta's Family Justice Strategy applies in Greater Edmonton, Calgary, Red Deer and Grande Prairie, and its four mandatory requirements must be met before family law applications are filed. One of those requirements is alternative dispute resolution, usually called ADR.

ADR applies if the parties disagree on any issue. It must have been attempted within the past 6 months, and all parties must file a Participation in ADR form before filing any family law court application. The requirement is to attempt ADR. It does not force you to agree to anything.

If you live outside those four areas, the rules can differ by court and location, so it is worth confirming with a lawyer or the court before you assume either way.

The four requirements at a glance

In the Court of King's Bench, parties seeking relief in a family proceeding must complete these mandatory requirements unless the matter is urgent or a waiver has been obtained. The counsellor meeting applies to self-represented parties where available.

What the Divorce Act adds

If you are divorcing, the federal Divorce Act has its own expectation. To the extent appropriate, parties shall try to resolve the matters that may be the subject of an order through a family dispute resolution process. This is a duty to try, not a requirement to complete mediation.

A legal adviser who undertakes to assist you in a divorce proceeding must, unless it would clearly not be appropriate, encourage you to attempt to resolve the matters through a family dispute resolution process. Parties must also, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

Exceptions: violence, urgency and other barriers

If safety is a concern, the rules include a waiver route and, in the Court of King's Bench, an exemption for urgent matters, both described below. All ADR processes under the Family Justice Strategy include screening for family violence, and anyone with safety concerns is told to contact 211, which is available 24/7.

A party who cannot complete a mandatory requirement must file a Request to Waive/Defer Mandatory Requirements form. Listed reasons include concerns about family violence, technological barriers, language barriers and being unable to locate the other party.

Under the Court of King's Bench Family Focused Protocol, urgent matters are exempt from the mandatory requirements. Urgent matters include a risk of violence or immediate harm, a risk of removing a child from the jurisdiction, and Emergency Protection Order reviews. Parenting time, contact or communication issues count only if they cannot reasonably be delayed.

The waiver process under the Protocol has been revised since it started, so check the Alberta courts website for the current steps.

What to do next

• Confirm which court and location you would file in, and whether the Family Justice Strategy applies there.
• List the issues you disagree on, since ADR applies when you disagree on any issue.
• If safety is a concern, call 211 and think about a waiver or urgent filing rather than ADR.
• Keep proof of any ADR attempt and the date it happened, because it must be within the past 6 months.
• Speak with a lawyer if you are unsure whether your situation is urgent or whether a waiver fits.

Frequently asked questions