Is Family Mediation Mandatory Before Court in Ontario?

If you are about to file for separation or divorce, you may have heard that you must try mediation first. The real picture is more nuanced, and different rules point in different directions.

This article explains what the law says about trying to settle, which court steps are required, and what mediation options connect to the court.

What the Divorce Act asks of you

Under section 7.3 of the Divorce Act, to the extent that it is appropriate, parties to a proceeding must try to resolve the matters through a family dispute resolution process. That is defined as a process outside court, such as negotiation, mediation and collaborative law.

This is a duty to try, not a rule that one particular process, such as mediation, must be completed. Lawyers must also encourage family dispute resolution unless the circumstances make it clearly inappropriate, such as where there is family violence.

The Mandatory Information Program is different

Many people confuse mediation with the Mandatory Information Program (MIP). Under rule 8.1, each party must attend the program no later than 45 days after the case is started. The rule applies to cases started after August 31, 2011.

Several groups do not need to attend. These include parties in cases proceeding on consent, parties whose only claims are for a divorce, costs, or incorporating an agreement or prior order, parties who have already attended a program, and others listed in the rule.

Where mediation comes up once you are in court

• At a first appearance in the Ontario Court of Justice, the clerk checks that documents have been served and filed, refers the parties to information and to alternatives such as mediation, and schedules a case conference.
• At a conference, a judge may refer issues to alternative dispute resolution if the parties consent.
• A judge may order a combined case and settlement conference if the parties tried family mediation or a legal aid settlement conference that included screening for power imbalances and domestic violence, with other conditions met.

Superior Court of Justice cases do not have a first appearance. The party books a case conference instead.

In each case in which an answer is filed, a judge must conduct at least one conference. A case conference is optional in child protection cases, and international child abduction cases are treated separately. One purpose of a case conference is exploring the chances of settling the case.

Court-connected and other mediation options

Court-connected on-site mediation is free on the day a party's matter is scheduled in court. Off-site mediation may carry user fees on a scale based on income and number of dependents. Availability and hours vary by courthouse and provider, so confirm locally.

Mediators screen the parties at intake and throughout to make sure both are in an equal negotiating position. The mediator does not give legal advice or take the place of a lawyer.

Family Law Information Centres at family courts give free court forms and general information about procedure, plus information about mediation and referrals. Staff give information, not legal advice.

Agreements and arbitration are different from mediation

The mediator writes up what the parties agreed. To make it legally binding, Ontario advises that each party get advice from a different lawyer before signing. A domestic contract, such as a separation agreement, is unenforceable unless it is made in writing, signed by the parties and witnessed.

A court may, on application, set aside a domestic contract or a provision in it. Grounds include a party's failure to disclose significant assets and a party not understanding the nature or consequences of the contract. A party may also file a domestic contract with the clerk of the Ontario Court of Justice or the Family Court so that its support provisions can be enforced.

Arbitration is a separate process in which a third person decides the issues, rather than helping you negotiate. A family arbitration award is enforceable only if the arbitration agreement is in writing and complies with the regulations, each party receives independent legal advice before making the agreement, and the Arbitration Act, 1991 requirements are met. An agreement to arbitrate a family dispute is unenforceable unless it is entered into after the dispute has arisen. An award based on religious principles is not a valid family arbitration award.

What to do next

• Decide whether mediation is safe and sensible for your situation.
• Check whether the Mandatory Information Program applies to your case and note the 45-day timing.
• Visit or contact a Family Law Information Centre for forms and mediation information.
• If you are on a low income, ask about Legal Aid Ontario advice lawyers and duty counsel at court.
• Speak to a lawyer before signing any mediated agreement.

How all of this applies depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions