“The family law justice system is fundamentally broken.”

I am reproducing here a most insightful piece by my colleague, Philip Epstein. Mr. Epstein is one of the foremost experts in family law in Canada. He has been a leader in many aspects of the system from directing the family law program at Ontario’s Bar Admission Course to being intimately involved in law reform to being an informative and entertaining speaker at numerous legal education programs in Canada and abroad.  I too have written about the necessity for systemic reform.  When Phil says that the system is broken, we can believe him. The added bolded and italicized emphasis in Phil’s text is courtesy of Gene C. Colman. The reproduction of Phil’s article here is presented with his kind permission for which we heartily thank him. … Gene C. Colman

FAMILY LAW REFORM – BY PHILIP EPSTEIN – From Westlaw Canada, Family Source, “Epstein’s This Week in Family Law”, 2013-26, 9 July 2013

All those who toil in the vineyard of family law should congratulate the British Columbia government for enacting significant family law reform by repealing the Family Relations Act, enacting the Family Law Act and creating new rules for property division, bringing common law spouses into the fold, enacting guidelines for mobility/relocation cases and promoting mediation, parenting coordination, and arbitration. There are no votes for the political party in power to enact family law reform, but no one can doubt that family law reform is needed throughout this country. Although four provinces have some form of formulaic approach to property division for common-law spouses, the other provinces lag far behind, and Quebec is further behind by failing to grant support rights to common-law spouses. The family law justice system is fundamentally broken, and the failure of the federal government and the various provincial governments to move to a Unified Family Court throughout this country is nothing short of appalling. In Ontario, two recent jurisdictions, Milton and Newmarket, issued practise directions that make motions virtually impossible to schedule on a timely basis and have a four-month delay in initial case conferences.

Family law cases are rarely tried, but the delay in resolving family disputes takes an enormous toll on parties and children. No one could seriously doubt that the family law justice system requires a front-end loaded system with immediate access to justice so that parties can have neutral judicial officers intervene at an early stage and help the parties to a resolution. There will always be high-conflict persons in high-conflict cases that need a trial, but they are a small minority. Interim orders often set a benchmark by which the parties get a better understanding of their rights, obligations, and their risks, and encourage settlement. Delaying proceedings for four months in order to have an initial meeting with a judge, essentially sends the message that the family courts are not open for business. Requiring that parties schedule long motions four months in advance, borders on being ludicrous. If all this comes about as a result of scarce judicial resources because the federal and provincial governments cannot get their act together, then we have a fundamental failure of justice, and quite likely, a Charter violation of family litigants’ rights in Canada. The situation has reached a crisis. While the federal government seems bent on building more prisons, the various provincial governments that are cash-starved do not see family law reform as a serious issue, and so we all drift into helplessness. Undoubtedly this is causing a significant rise in alternate dispute resolution, and the recent British Columbia legislation will encourage more mediation and arbitration. Quebec will continue to prohibit arbitration of family law disputes, and in other parts of the country, desperate parties will turn to ADR to help resolve their family law problems. It may be that mediation is ideally suited for the resolution of family law disputes, but it should not be forced upon people, and all families ought to be equally entitled to access to justice.

This is not to say that judges who work in the family law justice system are not doing their very best to deal with the mounting problems. Child protection cases abound. Self-represented parties now occupy most of the time at provincial courts and are making significant inroads into the daily dockets of the Supreme Court. The failure of Legal Aid to come to the aid of indigent family law litigants just increases the problem. The judges faced with all of this diligently try to tackle one case at a time, but are overwhelmed. We need far more judges, a better-funded dispute resolution officer system, more emphasis on the front end of a case rather than at trial, more simplified rules, and a greater commitment by the federal and provincial governments to have specialized judges preside in a Unified Family Court. The system is fundamentally broken. We need to recognize this and we need to support all steps that the bar can take to encourage family law reform.