This article originally appeared in the Ontario Family Law Reporter, Vol. 26, Number 6, December 2012. It is reproduced here with the kind permission of the publisher, LexisNexis Butterworths.
The Ontario Family Law Rules have not achieved the improvements in justice accessibility that family law practitioners had expected. To enhance access to justice, we need innovative reforms. Legal costs for litigants have skyrocketed; the manner in which the Family Law Rules are applied accounts for a significant portion of the imbroglio that masquerades as justice. Different models and solutions may be required where litigants are self represented versus scenarios where both sides have legal counsel. Proposed changes to the Rules in this article would serve to enhance timely access to justice and reduce legal costs.
2.NO MOTIONS GENERALLY ALLOWED BEFORE A CASE CONFERENCE
When first conceived, the rationale behind case conferences preceding motions was sensible. Before litigants start lobbing inflammatory allegations at each other, require them to appear before a judge in a relatively informal setting; let the court’s mandate be to focus on exploring practical solutions that might very well effectively preclude the need for divisive and expensive motions 1 . It was indeed a good plan that was designed to reduce conflict, minimize legal costs, and promote swift access to practical resolutions at an early stage of the case. In many instances (particularly where both sides self represent) this new system has worked admirably. Unfortunately, it has also, at times, impeded speedy access to justice and it has allowed unscrupulous litigants and their lawyers to unreasonably delay the resolution of issues that are extremely important to children and their parents (such as parenting time, temporary spousal support, preservation orders, etc.).
What has gone wrong?
- The inflammatory allegations are now found in unsworn case conference briefs.
- In many centres, the delay to obtain a case conference date solidifies a status quo that could be intolerable for one or both sides.
- Litigants have to pay the lawyer to prepare a case conference brief and motion materials. Legal costs are increased. For self-represented litigants, there is more time off work and more daunting procedural hoops that must be negotiated.
- Urgent motions can precede a case conference but the legal test to establish urgency 2 is unduly restrictive and effectively serves to deny litigants timely access to justice. Justice delayed can equate to justice denied.
How do we fix it?
- Case conferences should be optional except where both sides are self-represented. If there are no pressing issues, let the two sides have a case conference in much the same way as we do now.
- If a litigant believes that an issue is so "important" (note, I say "important" but not necessarily "urgent"), let that person bring a motion prior to a case conference.
- If a judge determines that the issues would have been more amenable to a case conference, let the judge order costs against the party who brought the motion unnecessarily.
- Reform the disclosure requirements so that the major reason for having case conferences (secure disclosure) is effectively legislated out of existence (see below).
- If the parties have completed their mandatory disclosure requirements (see below), then let them proceed directly (on consent) to a Settlement Conference.
- Bolster the Rules to make it crystal clear that contested orders cannot be made at case conferences. Provide one exception: Where there is no dispute as to income or entitlement, let the court make a child support order with respect to the table amount only. This amendment would entrench and finally legalize the widespread current (yet likely illegal) practice of making a contested order at a case conference.
- Some judges have been able to very effectively require multiple case conferences where both sides are self represented. Bringing the parties back on a frequent basis and making them accountable (whether this is in relation to ‘encouraging’ cooperation around custody/access issues or ensuring compliance with other orders) has been proven to build trust between litigants and the bench. An activist yet balanced judicial approach for the self represented serves to fashion effective solutions. More study is needed so that we may determine how to balance the judicial role of just ‘judging’ versus the modern approach of the judge as mediator, mentor, monitor and counselor. What may work very well for the self represented could be perceived as excessively intrusive and overstepping traditional boundaries where even one lawyer is involved in the case.
The Rules require litigants to attach the last three years income tax Notices of Assessment to their Financial Statements along with proof of current income. 3 The litigant must also serve (but not necessarily file) the full income tax returns for those years. These are wise additions to the Rules. But we need to do better!
What has gone wrong?
- Too much time is consumed within the system, especially at case conferences, addressing what should be from the outset a patently obvious obligation to comprehensively disclose documents.
- To promote early settlement and clarification of issues, we need a system that will oblige litigants from the outset to list and produce copies of the documents that are relevant to the proceeding. The current system is based on a catch me if you can paradigm. Disclosure should be mandatory and automatic.
- Currently, court staff will not permit a litigant to commence an Application or file an Answer if his/her Financial Statement does not have the notices of assessment attached. 4 It could be that the tax returns are in the matrimonial home and the litigant has no current access to the home. The other party could have taken the documents and refuses to release them. The person may not have filed tax returns. These issues present a barrier to access to justice.
- Children’s Aid Societies are effectively able to place obstacles in the path of respondents’ counsel to immediate access to the CAS file notes and third party documents. This delays cases.
How do we fix it?
- Amend the Rules to require a litigant to produce (without any prior demand) at the earliest possible moment the following elements of financial disclosure:
- Last three years tax returns and notices of assessment;
- Proof of current income;
- Proof of current values for assets and liabilities;
- Where equalization of NFP is an issue, proof of date of marriage and date of separation values. Where such proof is not immediately available, the litigant shall be required to prove that he/she has applied in writing to the bank, credit card company, etc for documentary proof;
- Where either side raises an issue of improvident depletion of assets or unreasonable incurring of debt, or where either side raises an issue that places into question the cash flow within a bank account, line of credit or credit card, then full statements must be produced (or requested if not immediately available) for the time period that either side has pleaded.
- Issues respecting who should bear the ultimate responsibility for the expenses of obtaining the disclosure can be addressed in court later.
- A document referred to in a pleading must be produced to the other party without a prior request.
- For non-financial issues such as custody and access, each party must produce all documents that are relevant to the issues including all emails, text messages, Facebook postings, medical reports, etc.
- All documents must be produced in a clear and legible format with a Table of Contents and numbered tabs.
- The brief must explain the reason for non-production of any document and must clearly describe the steps being taken to obtain the missing document and estimate the time within which the document will be produced.
- Self represented litigants may find these requirements daunting. Resources such as duty counsel and Family Information Centres must assume expanded mandates so that those in need of help just to organize and present their documents will be able to do so with minimal stress and delay. The automatic disclosure requirements that are advocated here should be implemented in such a way that does not serve to impede access to justice for the self represented. More study is needed in order to determine how to implement a two tiered system [those who have lawyers and those who do not] that is fair to all.
- For child welfare cases where the respondents have legal counsel or where a lawyer is appointed for the child, the Children’s Aid Society shall be required to produce its entire file within a certain defined period. Where the respondents do not have legal counsel, then a procedure must be in place to permit review of the documents at the CAS office and taking of copies where the production of the documents would not harm the child.
- Remove the discretion of court staff to refuse filing of an Application or Answer if the requisite documents are missing. Require the pleading to simply contain an explanation as to why the documents are missing. Let the judge address the failure to serve and file documents by way of costs or other sanctions but keep access to justice fully open to the litigants themselves.
4. TOO MANY CONFERENCES
The Rules provides for three conferences: Case Conference, Settlement Conference, Trial Management Conference. 5 While the Rules do allow for combination of the three steps into one or two, 6 the practice across the province is variable and largely unpredictable.
What has gone wrong?
- There are too many conferences. Those with counsel have to pay too much money. Self-represented litigants may find the process confusing and time consuming. (On the other hand, as noted above, multiple case conferences for the self represented may in fact be the optimum method to encourage compliance with orders and to educate the parties as to their rights and responsibilities. More study is needed to determine the optimum methodology. What should be apparent is that different dispute resolution modalities are required for the self represented versus those with counsel.)
- Multiple conferences (for those who have counsel) can translate into justice being unreasonably delayed.
- Counsel and parties have been known to come to conferences wholly unprepared.
- Briefs are frequently completed in an unhelpful and ‘pro-forma’ fashion. Copying and pasting from other pleadings is widespread. Little or no thought has been put into what the key facts and real issues are for that particular conference.
How do we fix it?
- Automatic disclosure requirements noted above will serve to clarify the issues at a much earlier stage without the necessity of a court attendance in many situations.
- The early exchange of documents will serve to bring clarity to the facts and issues. Any party who has legal counsel and comes to a conference unprepared to address the issues should suffer costs consequences.
- Where both sides are represented by counsel, make it mandatory for the two sides to at least talk (or exchange correspondence) and canvass the issues prior to any conference. Any lawyer who makes him/herself unavailable, should be required to personally pay costs.
- Make the conference forms inform drafters that you are required to do much more than just copy and paste from your pleading. You must address the facts and issues that are relevant to this particular conference.
- If important issues need to be resolved early and if those issues are not reasonably amenable to resolution on consent at a case conference, then let a litigant bring a motion without going through a case conference first. If the judge at the motion finds that a case conference should have indeed been the first step, then let there be costs consequences.
- Revise the Rules to encourage the combination of conferences. 7 Where both sides have lawyers, three separate conferences should be the exception, rather than the rule.
- Abolish "exit pre-trials" except where on consent. There is nothing in the Rules that requires litigants to attend these "exit pre-trials". Some centres require them as a last ditch effort to try to settle. These court attendances cost the litigants too much money and there is no legal authority to hold them. (Alternatively, if the judicial consensus is that these exit pre-trials do yield settlements, then place the procedure into the Rules.)
5. FORM 14B PROCEDURAL MOTIONS
The institution of the Form 14B procedural and/or consent motion was a welcome addition to the rules. 8 Simple and/or procedural matters could obtain a judge’s attention with a minimum of paperwork and maximum of efficiency. Coupled with the assignment of one judge as the case management judge (sadly not applied uniformly throughout the province), the 14B Motion has been an effective means to reduce legal cost and speed up justice.
What has gone wrong?
- Some court offices allow one to submit a 14B via fax. Some require a personal attendance at the court counter to file the 14B.
- When a 14B is submitted, some judges wait the requisite time before making a ruling; some do not. 9
- The expected response time from opposing counsel is potentially unreasonably short (four days after being served).
- Some judges seem to take a broad view of what is truly "procedural"; some do not.
How do we fix it?
- Amend the rules to require all court offices to accept 14B Motions via fax (or email). Require the court staff to file the 14B into the Continuing Record and update the Table of Contents.
- Allow responding counsel the option to submit a short faxed note demanding more time to respond. Allow the current four day response period to be lengthened on reasonable request to seven days.
- Require the judge to render a decision within seven days of the expiration of the time set for the responding party to respond. Require that except for consent motions, that the judge shall not render a decision prior to the expiry of the responding date.
- Amend the rules to clarify what is truly "procedural".
From a temporary or a final decision of the Ontario Court of Justice, one has an absolute right to appeal to a Superior Court Justice. 10 In the Superior Court of Justice, there is an absolute right of appeal from a final order. 11 But an appeal from a SCJ temporary order is less than straightforward. One must first obtain leave to appeal from another Superior Court justice within the same jurisdiction as the first judge. 12 In other words, you must obtain leave from a judge who likely shares chambers space with the judge about whom you are complaining! The notion of perceived judicial neutrality in such a situation is therefore somewhat stretched and sadly illusory.
What has gone wrong?
- Appeal rights are not consistent between the two levels of court in Ontario. OCJ cases have an absolute right of appeal for all orders (temporary and final) to the SCJ. SCJ cases have an absolute right of appeal only for final orders. Your appeal rights are affected by where you started the case. Where the court is unified at the Superior Court level, there is no issue. Where the court is not unified, your rights are very different depending on whether you started the case in OCJ or in SCJ.
- One cannot credibly maintain that a SCJ judge has superior family law expertise than an OCJ judge. It is exceptionally unseemly to expose our many eminent and learned OCJ judges to second guessing by single SCJ judges sitting on appeal. An SCJ judge who only dabbles in family law may be hearing an appeal from a very experienced family law OCJ judge. This demeans the OCJ judges. OCJ judges by and large are very accomplished in family law; it is often at least one half of their workload. To expose their decisions to the review of SCJ judges who may be less experienced serves to demean the importance of the excellent work that OCJ judges normally carry out.
- In many centres, an SCJ judge’s daily case load does not allow for the somber and reflective process that the Ontario Court of Appeal affords to litigants that makes an appeal there a truly fair if not an uplifting experience!
- The appeal route for final orders from the SCJ is confusing and open to varying interpretations. Some appeals must go the Divisional Court 13 while other appeals must be to the Ontario Court of Appeal. 14 Further appeals from Divisional Court to the Court of Appeal are only with leave 15 thus adding an extra level of delay and expense.
- Divisional Court judges are Superior Court Justices sitting as an appeal panel. You are asking three colleagues of the trial judge (or motions judge) to overturn a judge with whom they in all likelihood already have a pre-existing collegial relationship. You are asking these three colleagues to overturn a judge with whom on other days they may share the bench in Divisional Court. Institutional perception of conflict of interest and apprehension of bias is built into the system.
How do we fix it?
- Family law likely impacts more lives of Ontario’s residents than any other area of civil law. Its societal importance demands that the principles of family law receive the guidance of a court as accomplished and distinguished as our Court of Appeal. The court of originating jurisdiction (OCJ vs. SCJ) should not dictate the appeal route; rather, all family law appeals should be directly to the Court of Appeal.
- Leave to appeal temporary orders should be abolished. The leave requirement adds an extra layer of cost and complexity.
- Appeals from temporary orders could be directed to a single justice of the Court of Appeal.
- In order to prevent the Court of Appeal from being inundated with far too many appeals than could be reasonably accommodated on a timely basis, we must keep in mind the following:
- The reforms outlined above will make for a speedier justice system, thus precluding the need for an appeal of temporary orders in many cases. It should be faster to get one’s case on for trial than to appeal a temporary order.
- Where a temporary order is appealed unsuccessfully, there should be a prima facie rule requiring that the unsuccessful appellant pay the full indemnity costs of the successful respondent, absent very exceptional circumstances (such as a need to clarify the law in the public interest).
- Direct appeals to the Court of Appeal will facilitate clarification of child welfare law in an authoritative fashion as currently very few child welfare cases reach the Court of Appeal. This will give child welfare law the legal prominence that it truly deserves. What could be more intrusive than removing children from parents? We need consistency and authority in this area of the law and that is something that the Court of Appeal is uniquely qualified to provide.
The Family Law Rules have been a welcome change to the Ontario legal landscape. It is time to re-evaluate where these rules have facilitated access to justice and where they have been less than optimal in achieving the results that we had hoped for. This article has identified some of the challenges that we currently face. I have offered some tentative solutions. I hope that the ideas presented here will serve to spark the needed debate that will ultimately lead to effective reforms.
1 Family Law Rules, R. 17(4) - Purposes of case conference; R. 17(8) - Orders at Conference
2 Family Law Rules, R. 14(4) & (4.2); Rosen v. Rosen,  O.J. No. 62 (Ont. S.C.J.)
3 Family Law Rules, R. 13(6), (7), (10); Forms 13 and 13.1
4 Family Law Rules, R. 13(6) & (7)
5 Family Law Rules, R. 17
6 Family Law Rules, R. 17(7)
7 The Rules currently allow for the combination of conferences. More definitive wording or perhaps a more activist approach by lawyers and judges is required. Family Law Rules, R. 17(7): At any time on the direction of a judge, part or all of a case conference, settlement conference and trial management conference may be combined.
8 Family Law Rules, R. 14(10)
9 Family Law Rules, R. 14(10.1)
10 Family Law Rules, R. 38(5) & (6)
11 Family Law Rules, R. 38(1), Rules of Civil Procedure, R. 61; The applicable statute will contain the right of appeal from a final order. Eg. Divorce Act, s. 21
12 Rules of Civil Procedure, R. 62; Courts of Justice Act, s. 19(1)(b)
13 To the Divisional Court: Courts of Justice Act, s. 19(1)(a), 19(1.2) and 21.9.1; Rules of Civil Procedure, R. 61.03
14 To the Court of Appeal: Courts of Justice Act, sections 6(1)(b); Rules of Civil Procedure, R. 61.04
15 Courts of Justice Act, s. 6(1)(a); Rules of Civil Procedure, R. 61.03 and 61.03.1