Allison Jones, The Canadian Press
Date: Wednesday Mar. 16, 2011 10:34 AM ET
TORONTO — Putting families in crisis through the adversarial court system has been likened to pouring gasoline on a fire, but while many agree change is needed ideas about how to achieve that vary wildly.
“The adversarial system, which is our traditional court system, it inflames a lot of these emotions that people have when they separate,” said Judith Huddart, a family lawyer and president of the Ontario Collaborative Law Federation.
“It really isn’t working, period. And it hasn’t been working for some time.”
Ontario, which has the largest court system in Canada, has been chipping away at family law reform in recent years, notably by implementing 17 unified family courts, which bring various family law processes and services under one umbrella.
But that progress has stalled, and Ontario Attorney General Chris Bentley lays the blame at Ottawa’s feet.
“It’s the federal government that’s the hurdle, to be blunt, because I can’t do it,” Chris Bentley said in an interview.
In 33 Ontario jurisdictions that don’t have unified family courts people must go to two separate courts to resolve family issues, which doesn’t make a lot of sense, Bentley said.
“I’d love us to unify them all…The federal government has to allow unified courts and they’ve just stopped doing that. So they’ll have to explain why. Most people want them,” he said.
A spokeswoman for the Department of Justice said the unified family court is an “interesting” model that exists across Canada, but the federal government has no immediate plans to establish more.
Ontario has settled for at least extending some of the services offered by the unified courts to the other jurisdictions, which Bentley called the “next best thing.”
But the next best thing is likely not what Ontario’s top judge had in mind during a recent call for a “dramatic” overhaul of the family law system.
“In the area of family law, I question the effectiveness of the slow and steady approach of fine-tuning and rationalizing the present system,” Ontario Appeal Court Chief Justice Warren Winkler said in the fall in a speech opening the current court session.
“I think the time has come for a fresh conceptual approach to resolution of family disputes in Ontario.”
One upcoming change to the family law system is an integrated domestic violence court — the first of its kind in Canada — which is slated to open this summer in Toronto.
Right now if a family is in court fighting for custody, for example, and one of the spouses is facing a domestic assault charge, the criminal and family cases occur “as independent silos with virtually no sharing of information,” Ontario Court judge Geraldine Waldman wrote in an Ontario Bar Association newsletter.
Custody orders may conflict with bail or probation terms, family cases are delayed by criminal proceedings, families sometimes can’t attend counselling because of criminal court orders and they may be reluctant to address issues in family court because of a criminal case, she wrote.
In the new integrated domestic violence court one judge will manage both the family and criminal cases, though if a trial is needed it will be heard by a different judge. Appropriate cases will be moved to the new court on a voluntary basis and will receive help from a community resource co-ordinator.
“The goal of the court is to promote justice and protect the rights of all litigants, and through its holistic and comprehensive approach to resolution, increase offender accountability and promote victim safety,” Waldman wrote.
But some question what they see as Ontario’s piecemeal approach to family law reform. Measures the attorney general has taken to streamline the process, give families more information and strengthen protections are praised among the family law bar, but many say the problem lies within the system itself.
“Day in and day out our justice system drains the spirit, energy and life savings out of tens of thousands of Canadians who are going through separation and divorce,” according to family lawyer Michael Cochrane.
“In my view, our adversarial approach to resolving family law disputes has been akin to pouring gasoline on a fire.”
Cochrane proposes tearing down the current family courts system and in its place implementing a family relations tribunal.
“After 30 years of exposure to it, I think those cases shouldn’t be in the same building as bankruptcies and car accidents and commercial contract problems,” he said.
“They should be off in a separate process more akin to labour relations.”
The vast majority of family law cases don’t involve complicated legal issues, Cochrane said. They involve emotional problems, financial planning problems and safety concerns, he said, and a tribunal could better deal with them.
It would also be more cost effective in the long run, Cochrane argues, because right now some judges earning $240,000 a year are solving problems such as if access to kids on a long weekend includes the Monday.
“If we had a tribunal…those kind of disputes would be resolved by arbitrators who would be paid much less,” he said.
Huddart believes the “fresh conceptual approach” Winkler talked about must incorporate principles from mediation and collaborative practice, not just tack them on to the “current dysfunctional system.”
Huddart, who has stopped taking her cases to court all together, said more dramatic reforms are being held back by funding concerns.
“What we’re being told by the attorney general is that he doesn’t have any funds to put towards these kinds of reforms,” she said.
“Well, you know, it’s costing money. It’s just a question of where.”
When people leave the court system unprepared to deal with the breakdown of their family unit, the costs are transferred elsewhere, Huddart said, such as workplaces, schools and the health care system.
But where Huddart sees a need for the courts to address those issues, family lawyer Alf Mamo see a hole for the community at large to fill.
“It’s not that a court can make them available,” he said. “The court is there to co-ordinate those services, but the community should provide them.”
Society does a good job providing supports for a crisis such as SARS — the respiratory ailment that killed 44 people in the Toronto area in 2003 — but family breakdowns are not seen as contagious so they tend to be left to deal with their own fallout, Mamo said.
“The reality is all of society is affected by separation,” he said.
Mamo’s vision for the “fresh approach” Winkler spoke of is the idea that the issues dealt with in family court are bigger than just legal issues.
“It’s a public health issues, it’s an issue of public interest and as such the whole community has to provide a solution,” he said.
Family Law Judges are highly trained to address matters of law presented by two competent lawyers on behalf of their clients. That scenario doesn’t take into account the damage caused by the long wait filled with strategic withholding of access to children and property as spouses jockey to appear in a better position when they come before a judge. The scenario of having two competent lawyers also excludes self-represented litigants, who increasingly constitute the majority of cases. One example why is that Family Law Rules state explicitly a judge doesn’t have to refer to the facts of either litigant’s affidavits when coming up with a ruling. A self-represented litigant who feels their testimony has been virtually ignored may fight on only to have their pleadings struck and be left without the legal right to defend themselves whatsoever. There is a fundamental disconnect between the charter of rights and freedoms and being denied the right to defend oneself because one’s pleadings have been struck.
Judges have suggested that they could address the issue by being given more latitude to exercise their discretion. Given the infamous propensity of judges to simply not read the evidence of self-represented litigants where it is seen to be too long, or to contain flaws in its formatting or presentation, that’s an absolutely terrifying prospect. There needs to be broader input on reform not just from the Judges. In the same way that if you ask a surgeon for a solution to a medical problem he’ll suggest surgery, if you ask a priest he’ll suggest prayer, and if you ask a fitness guru he’ll suggest exercise, getting feedback only from justices is misguided.
One of the key issues I’ve seen are that there is is complete disconnect between what child research is saying and what the justice system actually does. I doubt there are any judges with PHds in child psychology but judges are given complete authority to determine what in their sole view, based on their own anecdotal evidence is the best interests of the children. As a consequence, while many studies have been presented in reputable journals like the American Psychological Association testifying to nearly equal access being in the best interests of the children, there is no legal presumption in the court for equal access.