2012 Opening of the Courts in Toronto

Protesters outside of the Ontario Superior Court of Justice

This past Wednesday the Opening of the Courts ceremony occurred in Toronto, marking the start of the judicial season.

I covered the ceremony last year here on Slaw. True to their promises the protesters were present again this year.

Family Law Still a Problem

Their focus this year, as in last year, was primarily family law. Not much has changed though since last year, except that law enforcement asked the protesters to move to the sidewalk instead of using their megaphone right outside the doors.

The speeches by the judiciary also touched on family law this year.

Chief Justice Warren K. Winkler of the Ontario Court of Appeal stated,

…we must concentrate our efforts on the specific areas of law with the greatest societal need and where we can have the highest impact.

It is for this reason that I continue to advocate for ongoing family law reform. Ontarians are more likely to have a family law problem than any other type of serious legal issue. Families in transition are expressing their increased frustration about the cost, complexity and delay they face in family litigation.

Chief Justice Heather Smith of the Superior Court of Justice echoed Chief Justice Winkler’s dismay that the Unified Family Court pilot project had still not been extended across the province, after 35 years. She also said,

Family has been the very strong focus of my remarks at each of the Court Openings over the last 3 years. Our leading priority has been to press for and support the essential level of front-end family services required at every single one of our 50 Superior Court sites. This past year, through great efforts, genuine collaboration and critical financial backing of the Ontario Attorney General, I am so very pleased to report that, indeed, our shared goal has been realized.

Members of the Bar, Legal Aid Ontario, and many mental health professionals, have also been extraordinarily generous in assisting and sharing our court’s vision to support families. In particular, the Bar and Legal Aid across the province have stepped-up to play a pivotal role in the new Mandatory Information Programs. These free Mandatory Information Programs – or MIPS – are two to three hours long, and have delivered essential information to family litigants at the very outset of the court process. The MIPS ensure that parties can make informed and empowered choices about the course and resolution of their cases. In the context of the growing number of self-represented litigants, the role of all of the professional volunteers in the MIP initiative has proven invaluable. I want to acknowledge this tremendous contribution by the Bar and thank its members for their ongoing, significant efforts and support for this MIP initiative.

To advance our court’s vision for properly supported family cases – as we map our way forward – there is a further pressing component to address. I refer, here, to our “mature” Dispute Resolution Officer program in Toronto – the DRO Program. This program has operated successfully in Toronto for more than a decade, with a nominal per diem honorarium given to the experienced family law lawyers who participate as DROs. Our “fledgling” DRO programs in the five new centres in the Central West and Central East regions have been operating, now, for over a year. In these five locations, the Bar has given its pro bono time, most generously and effectively. The Bar did so, with the understanding that a “business case” would be made to support the same honorarium for all DROs.

Attorney General Gerretsen, before the end of this year, our court will demonstrate to you the tremendous value the DROs provide to family litigants. By their genuine skill in facilitating resolutions at an early stage in family motions, the DROs save conflicted families not only the large litigation dollar costs but, also, the more insidious emotional costs. The DROs are worth their weight in gold! Yet, they seek only a modest honorarium for the extraordinary service they provide to Ontario families. Our court strongly supports their request and I hope, Mr. Attorney, as we both map our way forward collaboratively, that you and your Ministry will find a way to support it too…

The comments by Chief Justice Annmarie Bonkalo of the Ontario Court of Justice focused on the new Integrated Domestic Violence Court,

The Integrated Domestic Violence Court has now completed its first full year. This specialized court is designed to make the system easier and faster for families. It also increases consistency between related family and criminal court orders where the underlying issue is domestic violence. Our goal is to expand the jurisdiction of this innovative court in 2013 to include some child protection matters.

The signal from the judiciary here is clear to me. Family law reform is needed, and there is significant support from the bar in volunteering their time to assist in the areas of need within family law. Judges do not have an easy job, and are restricted by the legislation and funding provided to them by the government. In this respect, the efforts of the protesters which target the judiciary and the courts directly may be misguided.

Some lawyers and members of the legal profession have made independent efforts to make family law more accessible, as I detailed last year. Since that time I’ve also involved myself in developing the only free resource online which allows members of the public to do a with-child SSAG support calculation.

The legal profession appears to share the concerns over family law but believes a different approach is needed to address these problems. Somehow the gap between the disgruntled public, and the legal professionals who actually want to help, must be closed. My hope is that these members of the public realize that lawyers and judges can be their allies as well.

Appropriateness of Religion

A more subdued protest over the event occurred in the media around the appropriateness of religion. Tracey Tyler of the Toronto Star covered this angle:

…some legal experts question the degree to which religious symbolism should be mixing with the official business of the state, including the workings of its justice system.

Canada’s Constitution doesn’t stipulate a formal separation of church and state, as does its American counterpart, and the Charter of Rights and Freedoms says Canada was founded upon principles that recognize “the supremacy of God.”

But Canada has developed a strong tradition of keeping church and state separate and the idea of injecting religious imagery into the legal system makes many people uncomfortable, says James Stribopoulous, a professor specializing in criminal and constitutional law at Osgoode Hall Law School.

“We don’t have the debates you see in the U.S. about displaying the Ten Commandments at a courthouse,” Stribopoulous said.

But Canada also has a long tradition of government and religious organizations working alongside each other, noted Benjamin Berger, an Osgoode professor who counts religion and law among his specialties.

That said, tethering religion to the justice system is bound to give some people pause, Berger contends.

After all, judges are the people we turn to when disputes erupt over religious freedom, public prayer or state support for religious schools and their jobs involve trying to sort out where religion should fit in the complex relationship between citizens and the state, he said…

But the tradition of religious involvement in the Opening of the Courts is not as historic as some might assume. It only stretches back about six decades, at the height of the Communism scare, and was initially a Protestant only event (in response to the Red Mass). Parts of the ceremony did include philosophical/non-denominational passages such as the Iliad. Tyler notes that rather than removing religion from the ceremony entirely, the Canadian Secular Alliance has simply asked that they be involved as well.

Given the shifting values of Canadian society, the appropriateness of even an interfaith religious service for the judiciary might take greater prominence in the debates around the ceremony in years to come.

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Comments

  1. I suspect that the people demonstrating outside the courthouse about family law are not complaining about the fact that Dispute Resolution Officers outside Toronto are not being paid, or about the lack of Unified Family Courts across the province. I suspect that at least some of them are complaining that family courts ‘favour the mother over the father’ in support and custody matters. In other words, they are mainly ‘fathers’ rights’ groups. Nothing the learned justices said in their speeches will be any comfort to those groups.

    One of the demonstrators has a sign marked CFFAR. Here is a description of what it wants. Again, are the lawyers likely to help them? Maybe the MIPs will.

    We do not have separation of church and state, but we have freedom of religion, which is generally interpreted to include freedom from, at least on an individual basis. I agree with the sentiments of those who say that our courts have to be able to decide impartially claims to be free of religion. Are there examples where they have been alleged not to have done so, say in the past 50 years, because of the religious connections mentioned in this note?

  2. John,
    I would think that perceived gender imbalances is definitely a part of it. But the majority of protesters this year, including those in the photo, were women.
    What I hear consistently from these protesters when I speak to them is that legal costs are too high. I know from observation that I’m one of the few who will speak to them.
    I don’t think you need an explicit example of actual impartiality due to religious connections. A reasonable apprehension of bias, especially if litigation has a religious/anti-religious component, is usually sufficient. As stated, I think this will be played out more fully in years to come.