There are several ways parents and other important caregivers may resolve issues arising from a separation, or when they need to change an agreement or court order.
The term “family dispute resolution process” is used to describe the ways family law issues may be resolved without going to court.
When a family dispute resolution process may not be appropriate – safety concerns.
Family dispute resolution might not be right for you if there is:
a power imbalance
Before you take part in a family dispute resolution process think about whether there are any safety concerns, and whether you will be able to have your voice, and your concerns or wishes about your child, heard. You could end up with an agreement or a consent court order that is not appropriate, and difficult to change.
Accredited mediators and other family justice professionals recognize the importance of screening cases to help determine whether a given dispute resolution approach is suitable in the circumstances.
Screening tools are often a list of questions or a guided conversation that professionals use to find out what family dispute resolution process may be appropriate, or not, for your case.
Remember to meet with a lawyer to get legal advice and information about how the law applies to your circumstances before starting any family dispute resolution process, and before you make a final decision or agreement.
Some ways to resolve family law issues without a trial:
Negotiation is a discussion between two or more parties about their wishes, reasons why they take the position(s) and how to problem-solve to reach an agreement on the issues in dispute. Sometimes negotiations are informal such as discussions between the people involved over the kitchen table, or at a coffee shop for example. Often lawyers facilitate these discussions on behalf of each party.
For information on getting legal advice and finding a lawyer, click here.
Many of these processes are described on this website, and links to these sections can be found below. You can also learn more about these processes in the online intake module 'What you need to know before starting the family court process'.
Court-assisted dispute resolution, sometimes called 'conciliation,' is a process where both parties, either in separate meetings or together, meet with a court officer who will help the parties to focus on their situation and consider the appropriate options available to them in their court case.
For more information about conciliation, click here.
A mediator is a neutral third party who can help you and the other person identify issues in dispute, discuss these issues and come up with possible solutions. The people involved in mediation are responsible for making the decisions about each issue. The mediator doesn't have the power to make an order or to force you to agree. Also, the mediator’s role is not to impose the law.
There may be a mediation service available through the Supreme Court (Family Division). Check with your local court to see if mediation is available. Usually, you must have an active court application to be referred to mediation through the court.
You can also access mediation services by hiring a private mediator. You should look into the mediator’s background and qualifications.
For more information about mediation, click here.
The Court of Appeal Mediation Program is a voluntary program available to those who have launched an appeal in a civil or family dispute (not available in criminal appeals). This program is not available to litigants whose matters are being dealt with in the Supreme Court Family Division - it is for the Court of Appeal only.
The idea is to give litigants the opportunity to resolve their differences themselves with a judge’s help.
Litigants who cannot afford a lawyer, or who are representing themselves, have access to the services of a lawyer free of charge. The Canadian Bar Association’s Nova Scotia Branch keeps a list of lawyers who have volunteered to provide their services, pro bono (free of charge), for this program.
For more information about this program, click here.
The Supreme Court of Nova Scotia (Family Division)’s eCourt service is an online platform for judicial adjudication, decision making, case management and settlement conferencing. Developed in part with the assistance of the Federation of Law Societies of Canada and the National Family Law Program, the service:
is available province-wide;
is for matters involving counsel for both parties (the goal is to eventually include access for self-represented litigants);
is used to solve simple, discrete issues and case management; and
provides legal counsel the opportunity to engage in real time, online exchanges with a judge for dispute resolution.
Counsel interested in receiving training on the eCourt service or more information should email the eCourt Administrator at eCourtAdministrator@courts.ns.ca.
A judge-led settlement conference is an option for parties who want to negotiate a resolution and make their own decisions about their situation with the help and guidance of a family court judge. It is voluntary - which means the parties must each agree to take part. There is no requirement for either person to have a lawyer, and the cost is limited to the filing fee to start or respond to the court application. The judge’s time is free.
For more information about settlement conferences, click here.
Collaborative Family Law is a way of practising law where lawyers for both parties in a family law matter assist their clients in resolving conflict using cooperative strategies, rather than adversarial techniques and litigation. The goal of Collaborative Family Law is to achieve a satisfactory settlement in an efficient, cooperative manner.
For more information about Collaborative Family Law, click here.
What happens if we reach an agreement?
If you reach an agreement, and depending on which process you followed, it will be written down and called an “Agreement”. The people who reached the agreement will sign it to meet certain legal requirements. An Agreement may be registered with the court and, if approved by a judge, become a court order. Registering an agreements allows enforcement services like the Nova Scotia Maintenance Enforcement Program to help collect child and spousal support.
Other times it is better to have the terms of the Agreement set out in a court order. This always happens at the conclusion of a conciliation meeting, or a judge led settlement conference.
Most times a lawyer is hired to draft an agreement or court order, but this is not required.
If a lawyer or a court officer is not involved then you should at least have a lawyer look at the agreement before you sign it to make sure it meets the legal requirement for your circumstances. This is called getting independent legal advice.
What happens if we can’t reach an agreement?
If you cannot reach an agreement by using one of the family dispute resolution processes then you can try another process, or go to court. At the conclusion of a trial, a judge will make a decision. The decision will become a court order and you and the other person(s) involved will have to follow the court order until it is changed (varied) with a new order.