Family Justice 3.7: Concluding Remarks

I have, to the relief of many, exhausted my ability to devise alternate means of dealing with family justice issues. I could write more explicitly about therapeutic justice, I suppose, or perhaps provide a sketch of what a triaged entry to the justice system might look like, but these ideas have been talked and written about extensively. I doubt I have anything useful to add.

As I worked through these different models of doing family justice – and realized that I was reaching the end of my creative rope – it struck me that the first cause of the complexity inherent in family justice is that family law involves people, unpleasant motivations like possessiveness, jealousy, anguish, envy, fear and anger, and the turbulent emotional responses they generate. We can redesign family justice however we wish, but the management of human psychology is what it’s all about. It further occurred to me that family breakdown would be far easier to manage if: people were less devoted to the idea that romantic relationships are permanent and either monogamous diamorous, and approached separation with more equanimity; monogamous or diamorous relationships were entered into with the same degree of contemplation and intentionality as polyamorous relationships; imbalances of power, knowledge and resources were less tolerated; and, women’s formal equality were accompanied by substantive political, social and economic equality. This was the reasoning behind my post, “Family Justice 3.6: Rethinking Family to Reduce Conflict.”

This is very utopic thinking, I understand, and envisages social change at the fringes of likelihood, but it seems to me that recognizing these underlying issues and spending time stewing on our emotional responses to family breakdown might offer some valuable insights toward the reform of our present system of family justice, whatever the result might be.

Of course, lawyers play a critical role in the expression of our client’s positions, and the degree of conflict we encourage or discourage is highly determinative of how a family law dispute is resolved, as well as the amount of time and money resolution will require. In “Family Justice 3.5: Fostering a Settlement-Oriented Legal Culture,” I argued that lawyers have an ongoing obligation to proactively examine options for settlement and to recommend and encourage settlement when settlement is possible and reasonable. I also discussed how lawyers’ duty to promote settlement is not only complimentary to but in fact helps to satisfy our duty to advocate for our clients’ interests.

This theme was somewhat foreshadowed by my comments in “Family Justice 3.0: a Settlement-Oriented, Lawyer-Facilitated Hybrid Approach,” where I proposed a lawyer-guided rethink of the current system intended to promote settlement and take family law disputes out of the system to the maximum extent possible. I proposed other means of remodeling the existing system in “Family Justice 3.1: Inquisitorial and Abridged Hearing Processes” and “Family Justice 3.3: Automating Dispute Resolution.” In the former, I suggested a judge-guided model that was intended to be cheaper, faster and much more friendly to litigants without counsel. In the latter, I proposed a conceptual schematic for a software-based dispute resolution protocol that seemed to me to be actually quite doable and without requiring a monstrous budget to pilot.

In “Family Justice 3.2: Empowering Families to Address the Sequelae of Separation,” I suggested upending the current system to put the primary responsibility of resolving family law disputes on families themselves. I suggested that families in such as system would need to be well supported by a family services agency that would provide legal information, counselling, financial counselling and mediation, and would be the primary interface between the family and court. The court, of course, would be a unified family court.

My favourite alternative, one that has continued to grow on me the more I learn about administrative law, is a proposal I discussed in “Family Justice 3.4: A Family Services Administrative Agency.”

In that post, I proposed the creation of three-part agency to exclusively manage family law disputes. The agency would include a decision-making tribunal, an independent commission with investigative powers and a family support services department providing families with legal information, parenting education, financial planning, counselling and other assistance. My thinking here was based on the idea that family law disputes are difficult and complicated, demand a forward-looking focus, involve important, intangible and non-monetary interests, and would therefore benefit extraordinarily from the use of decision-makers with significant subject-matter expertise and the flexibility that administrative processes offer. Speaking about the administrative model, I wrote that:

“The potential this offers is, particularly in the context of family law disputes, astonishing:

  • decision-makers needn’t be judges or even lawyers, but could be subject matter experts with a highly-developed skill set;
  • evidence and argument needn’t be given orally, but could be provided in writing, or even reduced to fill-in-the-blanks forms;
  • dispute resolution could involve all, some or a hybrid of negotiation, mediation and arbitration;
  • alternatively, decision-makers could adopt an inquisitorial approach and take an involved, hands-on approach to the management of pre-hearing and hearing processes;
  • tribunal powers could be regulatory or judicial in nature, or some blend of the two;
  • the determinations of tribunals could be recommendatory or binding, and in the case of the latter could have the effect of a court order or be enforceable in the same manner as a court order; and,
  • tribunals could incorporate an investigative function through an independent agency, as human rights tribunals do with human rights commissions.”

I explain my thinking more fully in the post, which I encourage interested, bored, insomniac and/or obsessive readers to browse through at their leisure or compulsion.

Although I have yet more work to do on this idea, and will probably develop it into a paper or formal proposal of some type, I am convinced that an administrative approach to family law is worth considering. I wrote, concluding the post, that:

“I am deeply struck by the extraordinary potential offered by an administrative approach to the resolution of family law disputes, the most important of which in my view are: the use of specialist, highly trained decision-makers; the ability to address separation and its legal consequences in a holistic, supportive manner aimed at fostering the wellbeing of the separated family; and, the extraordinary range of procedural options available to develop a less adversarial and more accessible approach to family law.”

Whatever winds up happening with the family justice system, it is clear to me, and to the Action Committee on Access to Civil and Family Justice, that change is required; the system simply cannot continue as it is.

Now, having sufficiently exploited the platform provided by Steve, I would like to ask: is there any other options I haven’t thought of? No matter how odd, improbable, unlikely or incoherent, I’m curious to hear from anyone who has any further thoughts on alternative means of doing family justice. If you’re not up to a comment, please drop me a line at jpboyd@ucalgary.ca.

John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary

Comments

  1. Mr. Boyd, I think your treatises on the matter provide an excellent blueprint for reform. I have an even crazier idea: recognize that family law disputes are like health care problems — they can strike anyone, whether they did anything to deserve them or not, and they have an impact not only on the patient or party but also on innocent bystanders who are connected to them.

    Political recognition of the sad state of affairs in family law? Now who’s the Utopian? But wait, I’m only getting started. So we recognize that family law problems are everyone’s problem, the way we did with healthcare problems in the 20th century. Then we impose at the federal level (for the peace, order and good governance of Canada) a system to fund family law litigation within the legal regime that currently exists.

    Gravy for family lawyers? Sure. But (from a family lawyer’s perspective) it beats turning away the working poor who stand to lose everything they own and whose children will go without support because their opposing party has relatives with deep pockets whose skilled and zealous counsel can overwhelm them.

    “Who’s going to pay for it?” That’s a nice question. First answer this. “Who pays for it down the road when today we let family law litigants fend for themselves?”

  2. I think your analogy with the medical system is apt. The medical system is full of metaphors that can be pasted onto the justice system, like the concept of preventative medicine, triage, day surgery and critical care… and, I suppose, palliative care.

    As for the cost, well, the present and long-term costs of the present system are legion, and extend well beyond the cost of the justice system itself. You could look at the cost to the system in terms of the cost of delay, adjournments, trials that fail to complete within the allotted time, and the inherent inefficiencies of using judges to resolve emotional problems. From the point of view of the individual, the costs are initially financial and emotional, but can include non-obvious downstream costs in terms of employment, health and overall wellbeing. From the point of view of the children of separating families, the costs of conflict can include: impaired brain development; higher incidences of truancy and delinquency, alcohol and drug use and other maladaptive behaviours; higher levels of stress and psychological disorder; and, in their lives as adults, problems forming stable, trusting relationships and dispute resolution strategies modelled on their parents’ approaches.

    It seems to me that the over all costs of badly administered family justice goes further than a line item in the budget of the Ministry of Justice and have a massive adverse social impact. Surely the cost of reform pale in comparison.