Legal Duties of Family Mediators – With a Stiff Penalty for Non-Compliance

This week we are teaching a 30-hour course in family law for Ontario mediators. Although one only scratches the surface of family law in such a short time, we manage to cover a lot of ground.

Mediation in Ontario is an unregulated field. Although there are outstanding professional organizations for mediators to join—four in Ontario alone—membership in such an organization is optional.

There are likewise almost no statutory duties for those acting as mediators. Family arbitrators are more regulated, with specific statutory duties imposed by the Ontario Arbitration Act, such as the duty to ensure that the parties are suitable candidates for the process from a family violence and power balance perspective. Although the concept of screening for family violence and power imbalance has become sophisticated because of the work and research in the mediation field, (only) family arbitrators actually have a statutory duty to consider these dynamics.

But there is one critical statutory duty that all family mediators need to know and it is set out in the Child and Family Services Act (CFSA) , s. 72 (1). This is the section of the Act that requires every person to report to any information that, on reasonable grounds, suggests that a child is at risk of harm to a Children’s Aid Society (CAS).

The Act defines that risk very broadly, including not only physical and emotional harm, but also abandonment, failure to provide necessary medical care, and failure to provide treatment for conduct that harms others.

For mediators, it goes farther. Not only do mediators have a positive duty to report such risks, it is an offence with a fine of up to a $1000 for mediators to not report such risks if they learned of the risk in the course of their professional duties.

We spend a fair bit of time in our family law course discussing this section of the Act. It is important to know that mediators cannot rely on someone else to make the report… they must make it themselves. Oftentimes parties will undertake to call the CAS, but mediators may not rely on that.

Even if a party has a lawyer, the mediator must make the report. This is particularly important because lawyers are the only group of professionals who are exempted from the reporting duty. The Act specifically states that solicitor-client privilege overrides the duty to report a child at risk of harm under the CFSA.

The ethical and practical elements of making such reports in the mediation, arbitration and parenting coordination context are complicated and challenging and this is always a well-discussed topic in our training. For more information contact us at [email protected]

About Hilary Linton

Hilary Linton is a Toronto lawyer, mediator, arbitrator and teacher. After litigating family and civil disputes for 14 years, she started Riverdale Mediation which is internationally recognized for high quality dispute resolution services and innovative ADR training. Teaching hundreds of adults every year, Hilary and her team at Riverdale have designed a wide range of courses. Hilary has been honoured with the inaugural James G. McLeod Professorship in Family Law at Western University Law School, and the Ontario Bar Association Award of Excellence in ADR in 2014. She has taught many ADR courses as an adjunct professor at Osgoode Hall Law School, Western Law and Toronto Advanced Professional Education.

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