Fixing Family Law
By: M. Jerry McHale, QC
When a national columnist recently described the described the Ontario family law system as a “mess” and “utterly broken,” she could have been writing about any province or territory in Canada. While there are many aspects of our family law systems that are useful and effective, the overall picture is one of serious dysfunction and a status quo that is not sustainable. There are two broad problems driving this dysfunction.
The first is that family court processes are too complicated, too slow, and too expensive. This is partly a function of the rules that govern court procedures. They are extensive and intricate, and the forms and processes that they mandate take a very long time to work through. If you are represented by a lawyer, time is money, and the majority of people simply cannot afford to buy the amount of help needed. A common trajectory through the family courts is for a party to hire a lawyer, spend what money they have, part ways with their lawyer, and then either give up or try to navigate the litigation maze as a so-called “SRL” (self-represented litigant).
Those who give up either forego their legal rights altogether or compromize their needs on critically important issues such as the parenting of children, the payment of support or the division of family property. Those who try to take over their own litigation – nearly 60% of family cases in Ontario and BC involve SRLs – face almost impossible challenges. The court model is built on the assumption that both parties will be represented by lawyers, and SRLs are held to the same standard as the professional advocates. Not surprisingly, their legal outcomes compare poorly with those of represented parties. SRLs are climbing Everest without a Sherpa, and it is a stressful, disillusioning and frequently debilitating experience for them.
Those who continue with counsel continue, of course, to spend money, and they will incur additional cost if their lawyer is working with an unrepresented party on the other side.
This problem is occuring on a large scale. With a national divorce rate of around 35% (about 70,000 divorces per year), family law issues bring more people into contact with the justice system than any other kind of legal problem. Research tells us that when litigants are unable to resolve their legal problems, they often experience additional legal problems as a consequence, as well as health and personal problems. In this way, the costs of an ineffective justice system are visited not only on the individuals trying to use it but on the public purse as well.
The second problem driving family law dysfunction is even more fundamental – that is, most family cases should not be in the court system in the first place. A range of Canadian reports have explored the problems described above and have made multiple recommendations for reforming the system. The conclusions are very similar from one report to the next, and include the following:
· The traditional model for resolving disputes is adversarial litigation. This model assumes that parties are necessarily opponents and that their disagreement is a contest to be either won or lost. The disgreement is framed in terms of competing rights and the object is for each party to try to defeat the other. Aside from being the slowest and most expensive method of dispute resolution available, this approach exacerbates conflict and is unnecessarily destructive of the realtionship between the parties. We do a tremendous disservice to parents – and to their children – when we default to this model. We legitimate and reinforce animosity when we set them up as adversaries and effectively tell them that their very common and ordinary human problems are cause for an expensive battle.
· While the adversarial model will be necessary for a minority of cases, the great majority can be resolved safely, efficiently, and effectively in a collaborative dispute resolution process such as mediation. Mediation positions the parties as collaborators and frames their differences as a common problem to be jointly solved. Rather that focusing on opposing rights, mediators organize the discussion around the needs and interests of the parties, many of which they invariably share, especially when children are involved. Family mediation has been around long enough to prove itself affordable and effective. Mediated agreements are more durable than court orders and leave the parties with a better long term working relationship.
· Relationship breakdown is not a legal event with some social consequences; it is a social phenomenon with some legal consequences. The legal issues cannot be parcelled out and effectively resolved apart from personal and social issues. Experience has shown that if legal questions around parenting, for example, are decided by a judge, while the underlying non-legal personal issues between the parties are left unresolved, new legal issues are almost certain to eventually spring up. The unresolved personal issues live on and serve as a fight looking for a place to happen.
In this context, the family law reports frequently recommend new funding and/or reallocation of existing funding from expensive court rooms and litigation, and into services for families at the front end of the system. These recommended services include personal and financial counselling, legal education and advice, information about children’s needs, and mediation. While most provinces have moved in this direction to some extent, no Canadian jurisdiction has yet moved far enough. A 2013 family law report, written by the Action Committee on Access to Justice in Civil and Family Matters (chaired by the Honourable Thomas Cromwell, recently retired from the Supreme Court of Canada), described this failure to implement these repeated recommendations as “the implementation gap” and wrote:
[We have] attempted to grapple with the gap between the strongly worded recommendations of past family reports [respecting mediation and front end services] and the failure of justice systems to fully implement them. We see that to a significant extent, the ideas needed to make the family law system work better have already been articulated and we ask, what is getting in the way of the changes that are widely seen as necessary?
To repeat what was said here, we do know how to fix this, its just that we have not done it yet.
So bridging this implementation gap should be an imperative focus. If taken seriously, it would involve, in part, sufficient political will and government funding to implement the recommendations repeatedly made for front-end family services like counselling and mediation. The usual government response however is to plead poverty - “there is no more money.” In fact, there is lots of money, its just spent on other things. Watch, for example, how much money will be found to spend on criminal law over the next two years trying to catch up with the Supreme Court’s recent direction that criminal matters must be resolved within 18 months. Funding is an exact measure of political priority and the evidence, by this measure, is that family law is simply not a priority – notwithstanding considerable evidence that more extensive use of counselling and mediation would lower the per-case cost of divorce, both for litigants and for governments. Taxpayers have subsidized a combative litigation model for decades, wouldn’t it be preferable to subsidize cooperation and collaboration?
Last, but not least, closing the implementation gap – the discrepancy between what we know and what we actually do in family law – is also a matter of changing the underlying adversarial culture of the family justice system to make it less contentious and more truly collaborative. Academics, practitioners and critics have been writing about this change for nearly 40 years! Admittedly, it is no simple task - adversarial attitudes are deeply woven into the history, fabric and methods of the justice system. But the exorbitantfiscal and emotional costs of the long-dominant litigation model can no longer be supported. The system is unworkable and it is losing credibility. As such, it falls squarely and immediately to the law schools and to the judges, lawyers, legislators, administrators, and service providers who make up the family justice system to come to grips with the problem of adversarial family law culture change for once and for all.
 Christie Blatchford, National Post, March 21, 2017, online at http://news.nationalpost.com/full-comment/christie-blatchford-getting-to-the-root-of-ontarios-family-law-mess
 Meaningful Change for Family Justice: Beyond Wise Words (April 2013) online at http://www.cfcj-fcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Family%20Law%20WG%20Meaningful%20Change%20April%202013.pdf
 R. v. Jordan 2016 SCC 27 establishes a presumptive ceiling of 18 months on the length of a criminal case in provincial courts, from the charge to the end of trial.