I am going to make an argument that will sound sarcastic. It is not. I mean every word of it.
Parliament should amend the Divorce Act and the Children’s Law Reform Act to declare that the litigation of parenting disputes is not in the best interests of children.
It should be a rebuttable presumption that (absent family violence, urgency, incapacity, non-disclosure or bad faith) all parenting disputes belong in a private family dispute resolution process, such as Mediation or Mediation/Arbitration, and not in a courtroom.
If that sounds extreme, read the endorsement of Justice Robert Centa released on July 27, 2026 in Copeland v. Copeland, 2026 ONSC 4357 https://canlii.ca/t/km9nb.
If there were the classic case of the end of a marriage with young children, this was it. If there were the classic experience of the parents and children turning to the courts for help, this was it. If there were the classic case to prove that litigating parenting disputes is utterly disappointing, this was it.
Aaron and Brittany separated in January 2025. They have two boys, aged 7 and 4. They lived at Eglinton and Chaplin. Their children went to Bialik. They were both employed. Neither could afford to buyout the matrimonial home so it was sold. They were still living together. On May 13, 2026, they sold the house, with an August 4 closing. Everyone had to be out. Even though their home was soon to close, 18 months after separating, they couldn’t agree on a parenting schedule.
Mistake #1: Litigation was commenced.
Let’s pause to consider what that mistake meant in wasted money, time and good will.
-Cost of Court Application = ~$4,000
-Cost of Answer = ~$4,000
-Cost of Reply = ~$1,000
-Cost of Financial Statements (mandatory in any process)
-Cost of Case Conference x 2 = ~$6,000
Total cost = ~$15,000
-Time = 2-6 months of stress, uncertainty and acrimony
After the parenting schedule could not be resolved at the Case Conference, Brittany brought a motion for a temporary parenting schedule.
Mistake #2: Parenting motions are decided on a paper record with the judge never meeting the parents or children.
-Cost of Brittany‘s motion material = ~$6,000
-Cost of Aaron‘s motion material = ~$6,000
-Cost of preparing/attending hearing x 2 = ~$8,000
Total cost = ~$20,000
-Time = 1-2 months of grinding stress in the days leading up to the August 4 closing
On July 21, 2026, Justice Nishikawa said she could not fix a parenting schedule without knowing whether the children would be living in Thornhill, where Brittany found a rental. The case was moved to another judge to decide whether the court would permit the children’s “relocation” to Thornhill.
On July 23 (2 days later), the relocation motion was argued before Justice Centa and, on July 27, he dismissed it and directed it to a trial. He will be ordering Britanny to pay costs.
Eight days before closing.
The rest of the case is entertaining reading for legal nerds. Justice Centa found the proposed move was a “relocation” within the meaning of the Divorce Act, not a mere change of residence because it was “likely to have a significant impact on the children’s relationship with their father”. The case was treated no different than a case if Brittany was asking to move away to Vancouver. Justice Centa concluded that Brittany had not given notice in the prescribed form under the Divorce Act, that the children had always spent equal time with both parents and the move would end that, that Brittany had not established that comparable housing was unavailable in midtown and that Brittany had shown no compelling circumstances.
Lots of real estate agent material was filed for these motions. Of course, the information conflicted. Brittany’s evidence was that midtown Toronto was unaffordable and that a house in the desired school district would run closer to $4,500/m. Aaron’s agent claimed there were 5 midtown units ranging from $3,200 to $3,330/m. Brittany’s Thornhill townhouse was $3,200/m.
The judge did not speak to the agents. The agents did not speak to each other. The entire case was decided in a vacuum.
On the subject of distances, Brittany’s material appended a Google Map printout showing a 30-minute drive. Aaron’s Google Map showed the same route took over an hour.
This is an ordinary family, with an ordinary divorce, with an ordinary disagreement on where to live after they separate.
Two boys, aged 7 and 4, went into this last summer living with both their parents in their family home, not knowing where they were going to live, what school they were going to go to and when they were going to see each parent.
Can anybody convince me that our court system properly served this family?
As for the money spilled on this, I do not have the bills of costs or costs endorsement, so I will not pretend to know the exact figure. But I have been doing this for thirty-two years, and I can price a file. This case collectively cost Aaron and Brittany no less than $35,000 (after tax dollars: $70,000 pre-tax). Recall, they debated housing costs and were about $1,000 apart. The motions could have covered rent for over a year. A strong Family Mediator/Arbitrator could have settled the entire case in a few months, for a fraction of what they spent, and avoided the stress, uncertainty and acrimony.
At the start of this article, I asked Parliament to finish what it started in 2021. Section 7.3 of the Divorce Act already requires parties to “try” to resolve family law matters through a family dispute resolution process, to the extent it is appropriate. Section 7.7 requires legal advisers to “tell” their clients about those services. Ontario enacted a parallel duty in s. 33.1 of the Children’s Law Reform Act. Rule 2 of the Family Law Rules commands the court to save expense and time and to deal with cases proportionately.
What it never says out loud however is the obvious:
1. Parenting disputes should be directed by judges to a private family dispute resolution process first, such as Mediation or Mediation/Arbitration, and not come to court, absent exceptions.
2. Litigating a parenting case is itself a harm to the child.
The amendment I propose is mandatory family mediation with language such as:
“It is presumed to be in the best interests of the child that parenting matters be determined through an out-of-court family dispute resolution process, unless the court is satisfied that such a process is inappropriate having regard to family violence, a significant power imbalance, urgency, the incapacity of a party, non-disclosure, or bad faith conduct.”
So I will put it plainly, to the federal Minister of Justice, to every provincial Attorney General, and to every colleague at the family bar:
1. Read the decision in Copeland v. Copeland, 2026 ONSC 4357 https://canlii.ca/t/km9nb
2. Write me a rebuttal convincing me that the Copeland children would have been worse off in private Mediation/Arbitration before going to court.
This article was recently published in LEXISNEXIS’s Law360 Canada at: https://www.law360.ca/ca/family/articles/2524374/court-is-not-in-the-best-interests-of-children
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, Acc.D.C., is a full-time Divorce Mediator/Arbitrator and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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