“Family Justice in Canada Is at a Breaking Point” Redux*

The fees charged by many family law lawyers are out of reach for even middle-income Canadians and, in some underserved areas of the country, there aren’t enough family law lawyers to meet the needs of even those who can afford their services. As a result, an enormous number of people are entering the court system without the benefit of counsel, some by choice but most by necessity. However, the court system is difficult to navigate, even for those with an advanced education. Further layers of complexity are added by the intertwining of legislation and uncodified case law that is characteristic of the common law system, as well as by the incompletely overlapping jurisdictional competence of the provincial and federal legislatures and the provincial and superior courts.

Making matters worse, our court system is predicated on an adversarial approach developed in the middle ages, which makes perfect sense when processing the disputes of the arm’s-length parties to a motor vehicle accident or a shareholder’s grievance, but has disastrous implications for family members with children who must maintain a functioning relationship with each other into the indefinite future. However, neither bar nor bench typically has much training in the sensitive psychosocial implications of family restructuring after separation or the constructive management of family conflict. Unfortunately, the toolbox available through the court system more closely resembles that of a mason than that of a surgeon, making it extremely difficult to handle delicate issues like mental health challenges and addictions, attachment disruption and allegations of alienation, and claims of physical or sexual abuse with any efficiency.

Each of these problems entail consequences which compound their adverse effects and exacerbate the risk that justice will not be done, especially for litigants without counsel.

The volume of such litigants, as high as 80 per cent in some jurisdictions, has a negative impact on the efficiency of the court system, as lack of familiarity with the law, court processes and the rules of evidence increase the number of poorly-founded claims, the number of adjournments and the length of time to resolve both interim applications and claims. (Justice Gray, formerly of the British Columbia Supreme Court, found as much in a 2013 survey of the masters and judges of her court.) This has resulted in tremendous backlogs, especially in those regions where the judicial complement is short-staffed or has failed to keep pace with population growth, adversely affecting the speedy disposition of cases with counsel as well as those without. (In fact, data collected by the federal government shows that more than half of Alberta divorce files were four or more years old in 2015; many lawyers have had the curious experience of watching their clients’ children grow up before their eyes.) This in turn has affected public confidence in the family justice system, and the public is increasingly choosing to opt out of the system altogether and either abandoning the relief to which they are entitled or subscribing to extra-legal separation services that take a formulaic, off-the-rack approach to decisions about children’s residence, parenting time and the division of property.

Although this latter development should alarm anyone committed to the idea that ours is a country governed by the rule of law, there have been some important developments in the last few years that offer hope of improvement.

In 2012 and 2013, questions about access to family justice occupied an unprecedented prominence in the public and professional discourse. Professor Julie Macfarlane’s ground-breaking study of the experiences of litigants without counsel was accompanied by the report of the Family Justice Working Group of the National Action Committee on Access to Civil and the report of the Canadian Bar Association’s Access to Justice Subcommittee. These reports collectively spurred reform initiatives across Canada, some of which have fizzled and some of which have thrived. Outside of British Columbia, however, it is not at all clear what these initiatives have accomplished by way of tangible improvement.

On the legislative front, in 2005, Alberta was the first jurisdiction to jettison conflict-laden terms like custody and access in favour of presumptions of parental guardianship and child-centred language such as parental responsibilities and parenting time. British Columbia followed suit in 2013, with legislation taking a similar tack while also emphasizing the importance of agreements and out-of-court dispute resolution options, codifying the use of parenting coordination and implementing a statutory scheme to address mobility disputes. Nova Scotia came close to the mark in 2017, but ultimately opted to retain a scheme including the concept of custody. Now, Bill C-78 proposes sweeping amendments to the federal Divorce Act that follow the paths well-laid by Alberta and British Columbia, and speaks of decision-making responsibilities, parenting orders and parenting time, and greatly expands the list of factors to consider in assessing the best interests of children, including the presence of family violence and each spouse’s willingness to facilitate the children’s relationship with the other.

On the litigation front, unified family courts, first established in 1977 in Ontario, excepting an aborted attempt in British Columbia in 1974, are spreading across the land, encouraged by the Prime Minister’s mandate letter to the Minister of Justice of 12 November 2015. Even Alberta will be establishing a unified court later this year! This is unquestionably a good thing. According to research conducted by the Canadian Research Institute for Law and the Family in 2016, most family law lawyers practicing in areas with unified courts say that these courts have simplified court procedures, provide easy access to family justice services and produce outcomes tailored to individual needs. What they’re not so good at is providing a speedy resolution to family law disputes. This is what the 164 lawyers surveyed said about four key performance benchmarks:

Courts across Canada have pioneered early intervention programs intended to reduce conflict and canvass opportunities for settlement, such as British Columbia’s judicial case conferences and Alberta’s early intervention pilot project. Others have expanded the availability of judicial settlement conferences, while others have embraced efforts to improve efficiency by compressing and abridging hearing processes, such as the innovative Rule 1 trials pioneered by Justice Sherr in Ontario.

All of this is well and good, especially if the federal bill has the effect of spurring recalcitrant provinces and territories to update their legislative schemes. The question is how far these developments will go toward effecting meaningful change in our family justice system, and whether these developments are capable of salvaging Canadians’ faith in that system.

Although each of these developments is welcome news, the expansion of unified courts and the radical improvements proposed by Bill C-78 in particular, my somewhat skeptical view is that they are unlikely to ameliorate many of the deeper systemic problems afflicting the family justice system. They are not going to reduce the number of litigants without counsel, or increase the funding available to legal aid. They are not going to divert litigants away from court. They are not going to reduce lawyers’ fees, or increase the number of family law lawyers in underserved areas of the country. They are not going to reduce the complexity inherent in the common law system. And ultimately, as hinted at by respondents to the research institute’s study, they are not going to do anything to address the grotesque delays plaguing the judicial resolution of family law disputes.

Let me start by addressing the question of lawyers’ fees. I am not suggesting that family law lawyers are rapacious. Contrary to the too-common view that lawyers foment conflict to line their own wallets, another study completed by the research institute in 2017 clearly shows that that the dispute resolution process lawyers least enjoy is litigation, and that they not only prefer mediation, collaborative negotiation and arbitration over court but see these processes as producing results that are more likely to be in the interests of their clients and their clients’ children. In general, family law lawyers would rather seek an informed, rational settlement than pursue litigation, despite its significantly remunerative qualities.

What the public often overlooks, as was revealed at a 2018 colloquium of the National Self-represented Litigants Project, is that lawyers’ basic practice costs are extraordinary. Law society fees are compounded by insurance premiums, bar dues and other professional memberships, and the cost of commercial office space that typically exceeds that of housing a family. Let us not forget the extraordinary cost of staffing, bookkeeping, computers, other essential equipment and IT services. The practice of law is expensive, and most lawyers’ fees reflect this fact. However, while those lucky few who traffic in the carriage trade do quite well for themselves to be sure, most family law lawyers earn a fraction of the income of their Big Law counterparts once operating costs are paid.

If improved funding for legal aid is not on the horizon – bar associations and law societies across the country have been chasing that particular squirrel around the tree without luck for decades – and the reduction of lawyers’ fees is unlikely, what else can be done?

First, we should encourage family law lawyers to take on more work on an unbundled basis. There is a palpable fear of such work among the bar, that such work isn’t proper lawyering, that it will trigger a landslide of law society complaints, that it involves some incoherent ethical risk or that it pays poorly. In fact, a 2018 study by the research institute, involving some 14 months of data collection, showed tremendous levels of satisfaction on the part of both clients and lawyers with services provided on this basis, with not a single complaint to the law society or self-report made to the insurer during the study period. Clients, many of whom had low- and middle-incomes and resided in rural rather than urban areas, said that unbundled services helped them access justice, were inexpensive, helped them better understand the law and their options, and improved their ability to resolve their legal problems. Lawyers said that unbundling made legal services more affordable, improved outcomes for clients and improved clients’ ability to address their current and future legal problems.

Second, we can, should and must allow persons other than lawyers to assist people with legal problems both in and out of court. We lucky few are privileged to hold a statutory monopoly on the provision of legal services, yet an enormous number of Canadians are unable to retain those services and are forced into the tender arms of the court without representation. The scope of the “unmet and underserved legal needs in our society,” to quote a handful of reports from the Law Society of British Columbia, is vast and affects a majority of the population.

It seems to me that the concept of a legal monopoly is incompatible with unmet demand for the services only provided by the members of that monopoly, and that somewhere in our entitlement lurks a quid pro quo that we have, at our peril, failed to meet. It seems to me, and to McCarthy Tétrault’s Matthew Peters, that if we fail to address the problem of the accessibility of legal services on our own initiative, government will do it for us. As Peters said at the 2018 BC Legal Innovation Forum,

“If we are preventing innovation we are going to lose our social licence because, quite frankly, if I was an elected official, I would actually pass legislation soon if the profession didn’t wake up and say: ‘We need to solve this in a different way because you’re too self-interested’.”

I suspect that just such a possibility lurks behind the recent efforts of the law societies of Ontario and British Columbia toward the provision and regulation of legal services by non-lawyers. The title of the recently-amended Legal Professions Act in British Columbia – note the plural form of the noun – suggests likewise.

I am not suggesting that these more-affordable legal professionals should have a scope of practice equal to that of lawyers. Such professionals must be properly trained, insured, regulated and governed by a code of ethical conduct. The extent of their services should be developed with care, in consultation with government, the bench and the bar, and be commensurate with the level of training they receive. (I pause to note that law school equipped me with very little of the knowledge necessary to competently practice family law.)

Finally, we must also vigorously promote the resolution of family law disputes other than by litigation. Family law lost its chance to develop rules and processes unique to itself in 1875 when the first family court, the English Court for Divorce and Matrimonial Causes, was absorbed by the High Court of Justice. Ever since, family law has been treated as just another species of civil dispute, subject to the same rules and principles, despite its special nature and many important differences. As a result of this, we, as a modern, industrialized society, find ourselves in the bizarre situation of spending the vast majority of our family justice dollars supporting the dispute resolution mechanism that is the least efficient, most time-consuming and most destructive to families and children. A miniscule fraction of this funding is devoted to family justice counsellors and mediation services, and, so far as I am aware, none to funding private mediation, collaborative negotiation and arbitration. Surely, the public purse would be best spent supporting processes that are child-centred, holistic, cooperative to the extent possible, and promote the capacity of family members living apart to resolve disagreements on their own.

In my view, serious attention must be given to removing family law matters from the courts altogether, and relocating such disputes into an administrative system offering adversarial dispute resolution by a tribunal cohoused with a commission offering non-adversarial dispute resolution alongside: parenting after separation courses; social work, parenting and housing support services; financial and mental health counselling; and, parenting and other psychological assessment services. This administrative system should be interdisciplinary and explicitly aimed at promoting the wellbeing of children, reducing conflict, promoting parents’ ability to cooperate with each other and fostering the future functioning of the family. Its rules, policies and forms should be written in plain language and be tailored to the unique needs of families living apart; the rules of evidence and stare decisis should be simplified; and, the extent of the adversarial and non-adversarial processes provided by the tribunal and the commission should be genuinely proportionate to the circumstances of the family and the importance, complexity and value of the issues in dispute.

I am glad to practice at a time when serious change is underway. British Columbia’s Family Law Act and the amendments proposed by Bill C-78, so many of which were inspired by the British Columbia legislation, constitute the most significant family justice reforms since the Child Support Guidelines were introduced in 1997. The courts have been equally innovative, and shown their willingness to explore pre-trial processes aimed at promoting settlement and reducing conflict at the early stages of litigation, and, thanks to Justice Sherr, to rigorously examine the necessity of basic trial processes we take for granted. The bar has been a leader of change as well, as exemplified by the work of the Canadian Bar Association’s Access to Justice Subcommittee, the involvement of so many of our colleagues in the various reform initiatives sprinkled across the country and the creation of professional and public education materials like the CBA Family Law Section’s Successfully Parenting Apart toolkit. There even seems to be some interest in amending the Code of Conduct, as I and others like Deanne Sowter, Patricia Hebert and Nicholas Bala have suggested, to support lawyers wishing to take a less adversarial, less conflictual approach to the resolution of family law disputes.

However, I worry that these efforts, laudable as they are, may not shift the needle on some of the deeper structural problems affecting family justice. It seems to me that we must approach family justice from a fresh perspective, and critically examine all potential alternatives, no matter how improbable they seem, without the assumption that business as usual is prima facie worthwhile merely because it is usual. Neither unbundling nor the availability of legal professionals working at a lower price-point will demolish all of the barriers faced by Canadians seeking to access family justice, but they are a start that seem to be supported by the scant amount of research presently available. I likewise acknowledge that the creation of an expensive administrative commission providing child-centred, holistic, cooperative and future-focused dispute resolution is unlikely, not least because of the associated startup costs and the idea’s significant divergence from the status quo.

Still, something must be done. The need is urgent and is only growing worse.

* This post is the complete but slightly updated version of an article submitted to the CBA’s National Magazine and published in an abridged form on 25 February 2019.

Comments

  1. “Our court system is predicated on an adversarial approach developed in the middle ages, which makes perfect sense when processing the disputes of the arm’s-length parties to a motor vehicle accident or a shareholder’s grievance, but has disastrous implications for family members with children who must maintain a functioning relationship with each other into the indefinite future.”

    *slapping table*

    Hear, hear!

    We have the statement. Now whose doors do we nail it up on? Let’s rectify the blunder of 1875.

  2. You say, “the court system is difficult to navigate, even for those with an advanced education.” Quite right, but that’s the system’s fault, not the fault of the lawyers. It can be ameliorated by governments’ streamlining the system. But it is not solved by throwing thousands more legal service providers, such as thousands of paralegals and others, at the problem all trying to make a living out of the hides of the disputatious parents.

    The reason for the high cost of litigation, including family litigation, is the time it takes to reach resolution. Time is money. Reduce the time and you reduce the money spent per file. So how to reduce the time?

    Family law disputes are about two things – cash and kids. Where the cash is concerned, most litigants will spend only so much cash to acquire or defend an essentially finite amount of cash. A fight over cash is self-limiting.

    But where the kids are concerned, people lose their good judgement and will spend anything, make any sacrifice. The best answer to reducing the time and cost of family litigation is to take the dispute over the kids out of the equation. Do what has been done practically everywhere in Europe and in at least two American states – impose an automatic shared custody/access regime on the parents, eg, one week on, one week off, that can be altered in only two circumstances. (1) The parties agree to something other than alternating weeks (but until agreement is reached, the automatic sharing continues) or (2) on a high threshold and with hefty penalties for misleading the court, a party obtains a court order for sole custody on the basis that the other parent is truly unfit (pedophile, violent abuser, meth addict, etc.).

    More legal aid is not the answer when governments are so debt-ridden. More legal services providers is not the answer when there are too many already. Streamlining the system is part of the answer. Removing aspects that should not normally be the subject of litigation is part of the answer. Reducing the time it takes to reach resolution is part of the answer so that the cost is reduced making the process affordable for far more people who would then be able to afford proper, well-educated advice from lawyers who, in turn, would be able to help, say, twice as many people for half the time and cost. The clients would have the best type of representation, ie, from lawyers, and the lawyers would still have their revenues from which to pay their mostly unavoidable overheads and their take-home pays.

    A short essay cannot cover all the bases of this topic, but we need to be thinking about real solutions, not the counter-productive non-solutions of throwing more money and more providers at the problem.

  3. Gerry M. Laarakker

    Let’s not forget the lack of court time and expenses. Last week I sat in a courtroom for the better part of a day, only to be told: ” We won’t have time to hear you Mr. Laarakker. Please contact the trial coordinator to arrange for a new time.” And that’s how costs go up and up.

    Before talking about Legal Aid, Pro Bono and what not, let’s get the court system running more efficiently and stop mollycoddling those judges. A former BC Superior Court Justice, Bouck, pointed out that an equivalent judge in the US has twice the caseload with half the salary as compared to a Canadian judge.

  4. It’s redux, because there’s probably never been a legal crisis that has ever been ignored for this long in Canada.
    Despite the changes you mention, including Bill C-78 , I don’t see any end in immediate sight. Like you, I see deeper structural problems. The hopes on my horizon include long-term developments of technological solutions that can steer these conflicts away from courts.

  5. It is clear that both the complexities as well as chaotic operations of our present family justice system are leading to far more than simple delays in everything from child custody to support and maintenance for children and spouses in financial need; the failure of the family justice system and the lengthy process of reaching settlements lead to building tensions in partners of divorce that have very strong negative repercussions for children and youth involved in the process. After conducting my own research summary on the topic of divorce and its effects on families, I found that the lack of available representative counsel, the disorganization of the family court process, the technicalities of trying to work through the areas of child custody, support and maintenance, and property division result in an impossibility for partners of divorce to ever make a ‘clean break’. This factor, alone, leads both parties, in many cases feeling hopeless because of a lack of clear and visible guidelines that offer them a ‘light at the end of the divorce tunnel’, so to speak. The result for partners of divorce as well as their children often lies in the development of mental health issues that now create a double edged sword, whereby lawyers and judges are wanting partners to make vital decisions on legal matters that will strongly impact the rest of their lives, yet much research demonstrates that these types of decisions should never be made in times of critical life changes or in states of heightened stress. So I believe that rather than trying to fix the problem by restructuring the family justice and court system – something that has been attempted for the past several decades without positive outcomes so far – it would appear the focus needs to move away from an intervention approach. To date, the majority of the focus is on the stages of moving through the judicial processes of divorce (intervention approach) when in fact we should be focusing on, and applying more funding toward, promotion of programs that work to build healthy relationships, followed by prevention programs that offer support and guidance including free counselling and services that work toward re-establishing stable and healthy family units when family relationship breakdown occurs. This would involve focusing on the specific family situation and/or relationship needs, and then creating a collaborative specialty team approach that work to re-establish cohesion and stability as efficiently as possible. Through the process, it would seem we would be reducing the number of cases being filed within family judicial courts, which would result in perhaps more funding, time and expertise on restructuring the family court system – based on present-day updated, realistic criteria and goals. Focus on child custody should move away from ‘equal parenting time and access’, and toward looking at parent roles in child care responsibilities prior to separation. If the goal is to maintain a sense of stability for children, this active parenting prior to separation would be an important and vital part of the divorce process. Second of all, children and youth need to have greater input into the decision of parenting time and where they live, especially if we are to minimize trauma and reduce the negative impacts of divorce on children and youth, including the exponential rise in poor mental health outcomes for children and youth of divorced families.
    Thirdly, the family court process needs to be both simplified and more ‘user friendly for the average citizens who utilize these services. With the present system, a person really has to almost take paralegal training or become a lawyer in order to maneuver through the system, which is an unrealistic expectation of Albertans and Canadian citizens.
    Fourthly, legal counsel including lawyers need to be more effectively mo ignored- I carrying out legal processes as well as In their billing. So many citizens are unfairly represented, paying excess expenses for services that result in, at best slow, or even no movement at all though the divorce process. Billing processes are not clearly laid out so that clients can understand, while at the same time clients are being excessively billed fir things such as repetitive phone calls and messages left for return calls for which lawyers fail to respond, resulting in excess financial costs and burdens to clients.

    In a summary, if we wait for the courts and family justice system to ‘fix’ the process, we will all be long gone and dead before we see a positive and effective judicial system change that works for and with the people. It is in too much mess from being ‘left’ for some future politician and judge to straighten out the mess. So, no, we cannot rely on court and family justice system change to correct the problem.
    The answer lies more in working with family early in relationship breakdown, to provide professional guidance and services effectively and expeditiously, so that we can minimize both the length time families remain in instability, as well as the negative mental health outcomes that often occur when situations become critical or experience prolonged periods of inability leading to chronic and often traumatic outcomes for all family members.
    One final point is that our present judicial, political and social services systems are disconnected, fragmented and broken. Employees or members within one branch are not educated or knowledgeable in the services the other two systems provide. This results in a failure of effective networking/collaboration of services that when combined or fully utilized, could save clients a great deal if time and frustration in trying to maneuver between the three systems to find assistance they are needing. The present disconnect create mental health deterioration, along with delays in establishing client needs, and resultant delays in access to services. If we want Alberta to prosper, we need a system that works efficiently, effectively, and collaboratively toward the needs and well-being of every citizen and their families, because it is by this measure that we are able to bring stability health, creating a stronger work force and thereby creating stronger economic growth in our country.
    The primary short-term goal must be collaborative systems that create effective processes tthat allow people access to the services they require because it results in shorter-term periods of individual and family instability, resulting in greater positive outcomes our country through reduced health care, legal, judicial, and social services funding needs.

  6. Yeah why doesn’t the percentages in each column add up to 100%?

  7. Because I removed the results for “neither agree nor disagree.”

  8. I am not a lawyer but some one stuck in this broken system. I just seems no matter what people say or do the system does not seem to get fixed. I am like so many people that have gone threw the system lost everything broke and tired and have lost faith in our Justice system and governments.

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