Despite the best efforts of our dedicated and tireless Family Court judges, they are becoming overwhelmed. There are many reasons for this phenomenon I am sure including the fact that governments across Canada spend roughly only 1% of their annual budgets on the justice system. One of them is what has been termed the rise of the “self represented” litigant. Self represented litigants are not necessarily a problem despite what you might hear in the media and read in studies undertaken to try understand the reasons behind their “rise” and to offer to solutions to deal with this so called phenomenon.
Self represented litigants are not going to go away and are not a problem to be solved. Rather they are a reality that our courts will have to grapple with because as the percentage of Canadians who have either separated or divorce continues to rise so too will the numbers of people who need or want to access the justice system for the purposes of assisting them with resolving the issues arising from their separation. Therefore so too will the number of self represented litigants steadily rise.
To try and deal with these rising numbers the Ministry of the Attorney General of Ontario in 2016 gave the Honourable Justice E. Bonkalo a mandate to make recommendations that the Ontario Government could implement to try and reform the family law system in Ontario. Unfortunately the mandate that was given to Justice Bonkalo was severally flawed and prevented her from proposing reforms that would truly reform the family law justice system. The mandate was flawed because it assumed that the family law system as it is currently constituted works and that the proposed solutions she would offer would help fix the family law system instead of recognizing that the family law system as currently constituted is need of major repairs and is in need of major, radical surgery.
In other jurisdictions, such as the State of Massachusetts in the United States, governments are experimenting with specialty courts. These courts create, in essence, a two tiered system of justice. On the one hand, if you can afford to retain a lawyer or have the benefit of a legal certificate, you would more often than not end up in a court that operates using the evidentiary standards, procedures and rules that have developed over the years to resolve family law disputes. If you can’t afford to or simply choose not to retain the assistance of a lawyer you would be streamed into a second court system that is designed around using a more relaxed set of evidentiary standards, procedures and rules. This second set of courts, called Family Resolutions Specialty Court in Massachusetts.
“is a voluntary program that provides divorcing and separating parents the opportunity to resolve their differences in a child-centered way and with less conflict.
Using a team-based approach, every family in the FRSC receives assistance. There is a lawyer for the children and a mental health professional for the family. A Probation Officer also guides the family through the process. There are no trials or motion sessions. Instead, the case proceeds via a series of conferences in which all members of the team – the parents, their lawyers, and the judge – work together to resolve the parents’ differences.
Through the FRSC, families are also referred to community support services such as: family and child therapy; substance abuse treatment; financial planning; employment, housing, fuel, and transportation assistance; early childhood intervention; and mediation.”
The problem with the Massachusetts experiment is that it creates, in essence, a two tiered system of justice. This in my view is simply unacceptable. The reason that it is unacceptable is that it treats litigants differently based on their resources or how they wish to allocate their resources. It also downloads onto the courts the added responsibility of acting as a social services agency, which is not the Courts role.
The Courts role, in the civil justice system, is to help litigants resolve their disputes either through gentle persuasion or through an adjudicative process such as a motion, focused hearing or if need be a trial. If litigants need community support services then they should be directed to the appropriate social service agencies in the community that can assist them. This is exactly what the Canadian Bar Association (“CBA”) proposed in 2013. That year the CBA released a comprehensive report on Access to Justice (A2J) entitled “reaching equal justice: an invitation to envision and act”
In the CBA’s A2J Report it is recommended that courts be re-centred so that instead of becoming the option of first resort they instead be dramatically changed so that Courts become the main path to dispute resolution processes and a centre for referral to other services for non-legal aspects of people’s problems. In order to do that the Ontario Government and governments across Canada need to spend more than 1% of their budgets on the justice system.
Assuming for a moment that there is the political will in Ontario and across the country to spend more money on the justice system what should be done, as outlined in the CBA’s Equal Justice Report, is as follows:
- Harness technology to transform the Court system by automating the current processes, allowing for online filing and records management and to allow for online dispute resolution amongst other services;
- Transform Courts into triage and referral centre’s that redirect litigants to the appropriate community bases services and/or provides them with information about the proper processes in order resolve their legal issues without having to resort to full blown litigation involving a judge
- Courts should employ “a wide range employ a wide range of quasi-judicial officers to assist litigants to achieve just and timely outcomes;
- Courts should be more customer oriented, similar to the Disney philosophy of customer service, so that they are open to feedback from litigants and develop transparent performance evaluation measures;
While spending more money on the Justice system in Ontario will help in resolving the access to justice issue it is not the be all, end all to solving the problem. In order to solve the problem all of the institutional participants in the justice system, the government, judges, lawyers and resource providers must be agree on reimaging the justice system and must work together to re-centre the Court system. For if/when that happens, then Ontario Courts will become what they should be: The option of last resort. When that happens the people, whom need access to justice will be able to:
- go to any courthouse in Ontario to obtain the information they require,
- be connected with or directed to the services they require; and
- Only have to return to the Courthouse in their community in order to see a judge in order to resolve their legal issue(s) as a last resort.
And if the people of Ontario are able to do that, only then, will it be able to be said, with confidence, that Ontario has resolved the access to justice issue.
 Canadian Bar Association, “reaching equal justice report: an invitation to envision and act”, Report of the CBA Access to Justice Committee, November 2013 at page 50.
 Rachel Birnbaum, Nick Bala, Lorne Bertrand, “The rise of self-representation in Canada’s family courts: The complex picture revealed in surveys of judges, lawyers and litigants” (2013) 91 Canadian Bar Review 67(Birnbaum study); Julie MacFarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (May 2013) (Madarlane study); Anne-Marie Langan, “Threatening the Balance of the Scales of Justice: Unrepresented Litigants in the Family Courts of Ontario” (2005) 30:2 Queen’s Law Journal 825; Gayla Reid Donna Senniw and John Malcolmson, “Developing Models for Coordinated Services for Self-Representing Litigants: Mapping Services, Gaps, Issues and Needs.” (Vancouver: Justice Education, 2004); Community Legal Education Ontario (“CLEO”), Tapping the Community Voice: Looking at Family law Self-Help through an Access to Justice Lens – Themes and Recommended next Steps (Toronto: CLEO, September 2009);
 Supra Note 1 at page 76.
 Supra Note 1 at page 86. Also see Richard Zorza, “The Access to Justice “Sorting Hat”: Towards a System of Triage and Intake that Maximizes Access and Outcomes” (2012) 89:4 Denver University Law Review 859 at 861 (http://www.zorza.net/SortingHat.pdf)
 Supra Note 1 at page 93.
 Ibid at page 93.