CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
and strongly encouraged. While generally volun ‑ tary, courts may require parties to attempt media ‑ tion before continuing with litigation. • Family Law Arbitration – a neutral arbitrator hears evidence and makes a binding decision. Partici ‑ pation in arbitration is voluntary and serves as an alternative to trial, subject to safeguards ensuring decisions align with the child’s best interests. • Mediation-Arbitration (Med-Arb) – a hybrid process beginning with mediation, followed by binding arbi ‑ tration if no agreement is achieved. Participation is voluntary. • Parenting Co-ordination – used after a parenting order or agreement is in place to address ongoing or day‑to‑day disputes. In some provinces, courts may order parenting co-ordination in high‑conflict situations, granting the co-ordinator limited deci ‑ sion‑making authority. • Collaborative Family Law – a voluntary, non‑adver ‑ sarial process in which parties and their lawyers commit to resolving issues without resorting to court proceedings. • Judicial Dispute Resolution (JDR)/Settlement Con ‑ ferences – judge‑led settlement processes that, depending on the province, are often mandatory procedural steps before trial. While no single ADR method is universally mandatory across Canada, courts increasingly require parties to consider or attempt ADR – particularly mediation – and to participate in settlement or case conferences before a matter may proceed to trial. For example, in British Columbia, the Family Law Act and the Notice to Mediate (Family Law) Regulation allow a party to compel mediation by serving a Notice to Mediate. Once served, participation becomes man ‑ datory unless mediation would be inappropriate due to issues such as family violence or urgency. Although failure to comply does not result in fines or contempt, the court may compel mediation, delay proceedings, or impose adverse cost consequences where refusal is unreasonable and no exemption applies. The focus is on requiring participation, not forcing a settlement. Across Canada, agreements reached through media ‑ tion, collaborative law, or negotiation are treated as domestic contracts, and once validly formed, they
are binding and enforceable in court. In many prov ‑ inces, such agreements can be filed with the court and enforced as court orders. To be enforceable, these agreements typically must: • be in writing; • be signed by both parties; • be witnessed (in most provinces); • be based on full and honest financial disclosure; and • be entered into voluntarily, without duress or unconscionability. However, even a properly executed agreement may be varied, set aside, or replaced by a court order. For example, in British Columbia, an agreement may be set aside under the Family Law Act if it is considered significantly unfair. Jurisdiction over children’s proceedings in Canada is governed primarily by a combination of federal and provincial/territorial statutes. Key legislation includes the Divorce Act (RSC 1985, c 3 (2nd Supp.)), provincial family law statutes such as Ontario’s Children’s Law Reform Act (RSO 1990, c C.12), and, where appli ‑ cable, the Hague Convention on the Civil Aspects of International Child Abduction. These statutes set out rules for determining jurisdiction over parenting disputes – including decision‑making responsibility, parenting time, guardianship, and child contact – and they provide mechanisms for addressing interjurisdic ‑ tional and international mobility or abduction issues. A child’s habitual residence is the principal jurisdic ‑ tional connecting factor for commencing children’s proceedings in Canada. Under the Divorce Act and most provincial/territorial family law statutes, the court of the jurisdiction where the child is habitually resi ‑ dent at the time the proceeding is initiated generally has the authority to make parenting orders, including orders related to parenting time and decision‑making responsibility. Habitual residence is also a funda ‑ 3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings
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