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| Eric Sadvari |
However, it was also a reminder of just how rare it is for any family law case to get the opportunity of a full hearing on the merits at the highest court in the land. While there is sadly no shortage of family law litigation in this country, family law appeals rarely make it all the way up. By my count, in the last 10 years (i.e. from 2014 to date) the Supreme Court has granted leave to just 15 family law cases. Entire years have passed — including consecutively — in which the Supreme Court has denied leave to each and every family law case that has sought it.
So, with that in mind, perhaps it is understandable that when Chief Justice Richard Wagner singled out family law cases (in off-the-cuff comments during the Canada Bar Association’s Verdicts and Voices podcast, just shortly before Ahluwalia was heard) as the only example of matters best suited for a new mediation initiative for failed leave applications, my initial thought was: is the court simply trying to avoid family law?
Every year, scores of deserving cases lose out on a full hearing on the merits at the Supreme Court. And based on the history of the last 10 years, family law cases already seem to be particularly adept at failing to make the cut. So, is it not reasonable to fear that if the court only offers mediation to matters they are refusing to hear on the merits, and it also views family law cases as most suited for mediation, then is it not likely that family law cases being selected for hearings on their merits are going to become even more rare than they already are?
Don’t get me wrong: I am a big proponent of mediation. Especially in family law matters. Yes, mediation itself is not always appropriate, including when family violence makes it unsuitable. But mediation otherwise remains an incredibly powerful, important, and effective tool for resolving family law disputes. Simply put: mediation works. It works to resolve disputes after litigation has begun and as a complete alternate to litigation itself.
Mediation works at the appeal leave too. In fact, approximately half of all the appeal cases I have been involved in have settled due to judge-led mediation in the form of judicial settlement conferences. I am very grateful that the appeal courts I have primarily dealt with (being the Ontario Court of Appeal and the Divisional Court) are willing and able to devote time and judicial resources to such conferences. And I applaud the Supreme Court’s openness to explore something similar.
However, there is a key difference between what I have experienced in mediation at the appeal level and what the Chief Justice described. And that key difference is the timing of the mediation. I truly believe that it is important that mediation take place before any final decision of the court. In my experience, mediation works best where both sides feel that there is some level of risk of an unwanted outcome — no matter how small that risk may be.
And it is hard to think of any situation less “risky” than right after the highest court in this country has denied that final leave to appeal.
Overall, I am very happy that the Supreme Court is exploring mediation. I am proud that we have a Chief Justice who is willing to innovate and embrace alternate dispute resolution. I recognize that what the Chief Justice spoke about was more of a “sketch of an idea” that anything definitive. I look forward to hearing more as the court’s exploration continues.
I can personally see the best time for mediation to be offered as either right after a leave application has been filed, but has not yet been determined, or right after leave has been granted, but no hearing on the merits has occurred. I can also see there being truth to the Chief Justice’s choice of singling out family law cases as being perhaps the most likely to actually settle in this process. But not without the element of some risk of what the court may ultimately decide in the case.
Not every family law case needs to bring the same intensity and drama to the Supreme Court as Ahluwalia did, but I do hope more are at least granted the chance.
Eric Sadvari has practised exclusively in family law since his call to the bar. He works at Kenet Family Law. Having served in the past as chair of the Ontario Bar Association (OBA’s) Family Law Section, he currently serves as chair of the Canadian Bar Association (CBA’s) Family Law section. Sadvari is also an adjunct professor at the University of Toronto Faculty of Law, where he teaches courses in both trial advocacy and family law.
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