Burning Down (Or Perhaps Just Lightly Scorching) the House

It seems to me that whenever we talk about litigants without counsel, the conversation inevitably veers toward the delays, costs and other inconveniences such litigants impose on court and counsel, and the sort of public legal education that might be provided to smooth the stormy seas. This isn’t an unreasonable response, coming as it does from lawyers and judges who have spent their professional careers navigating the justice system, but we forget the stupendous complexity and sheer foreignness of the litigation process to those without our hard-won skill and understanding, and I worry that public legal education is an intrinsically inadequate solution. We can’t train litigants to be lawyers, only law school, bar admission courses and experience do that.

It’s difficult for most legal professionals to appreciate the monumental strangeness of the justice system for those not steeped in it. We are intimately familiar with the rules of evidence, both statutory and uncodified, and understand the rationale for the counterintuitive principle expressed in Browne v Dunn. We know our Latin maxims, the difference between legislation and regulation, understand the peculiar hierarchy of stare decisis, and know what line to stand in to file a claim at the courthouse. We have been trained to parse the most execrably written legislation, and know that a vast pool of case law exists interpreting not just section and paragraph of that legislation but sometimes the meaning of the individual words themselves.

Imagine, for a moment, knowing none of this.

Now that you and your spouse have separated – and I use this example because the rates of self-representation exceed 80% in some family courts – what might you do to learn about your rights and obligations? If you remember your high school civics class, you probably recall something about statute law. But did you know that there’s both a federal statute and provincial legislation that apply to your situation, that talk about the same legal issues but do so using different terminology? Did you know that there are two trial courts in your province, one of which can deal with all of both legislative regimes and the other of which can only deal with part of just one or two statutes? Did you know that you won’t be able to understand the meaning of a statute by the plain meaning of the printed words, but may need to consult the regulations to the statute, the federal or provincial Interpretation Act and an unorganized body of case law? Did you know that other cases prescribe legal tests that must be applied to determine your entitlement to a statutory remedy, the existence of which the statute doesn’t even hint at?

Perhaps you can avoid this confusion by reading the pamphlet you picked up at the courthouse. Considering that Carswell’s Annotated Divorce Act requires 100 pages to cover child support in tiny 10-point type and that Payne on Divorce needs 84 pages of 11-point type to get through the same subject, I don’t know how much help that double-sided 8½ x 11” sheet you took home is going to be, especially if your circumstances are at all unusual. Of course, there’s bound to be more information in a website somewhere, but it’s awfully hard to pick through the internet’s buffet of effluvia to select a reliable source that covers the law that applies to you in your jurisdiction and addresses your specific circumstances in language you understand to the depth you need.

The point I’m trying to make here, without even touching on the headaches occasioned by discovery, chambers and trial processes, is that the contemporary justice system is labyrinthine and stuffed full of recondite and often otiose complexity. The millions of dollars we spend on public legal education produces correspondingly valuable resources, without a doubt, but those resources cannot equip litigants to comfortably and competently manage the system – especially those unable to devote themselves to the full-time study of legal processes, those whose first language is not English or French, or those with cognitive or functional impairments – and, as a result, whenever we talk about litigants without counsel, the conversation inevitably veers toward the delays, costs and other inconveniences such litigants impose on court and counsel.

Maybe it’s time to remember that the justice system we cherish and in which we thrive isn’t our system, the system of judges, lawyers and paralegals, but the system of the people, the litigants who are its users and beneficiaries. Maybe instead of forcing litigants to adapt to the nuanced arcana of our reality, we need to create a justice system that is intuitive and more closely attuned to their reality.

This is a radical, if not heretical, thought. As I’ve said, we who are legally trained understand the whys and wherefores of the system, value the exquisite subtleties accompanying the intersection of jurisdiction, legislation and precedent, and appreciate the elegance of a well drafted contract or factum. But let’s consider two aspects of an accessible family justice system as a thought experiment before I am burned at the stake.

First, we might start with the courts. With the greatest of respect, I fail to appreciate the virtue of a generalist system where judges who practiced corporate commercial law as counsel are assigned to handle nuanced family law disputes. Would it perhaps be better to have former family law lawyers, expert in such problems, handle those disputes? Just a thought.

Since we’re here, why is having two trial courts with incompletely overlapping subject matter competence a good idea? I understand the constitutional, financial and practical reasons for the courts’ existence, but most litigants without counsel are justifiably flummoxed by the parallel existence of courts with different rules, different forms, different jurisdiction and different fee structures. How about a unified court with rules and forms designed just for family law disputes? I understand these work reasonably well in those areas of the country lucky enough to have them.

However, the rules of court for family matters oughtn’t be the rules applicable to other civil disputes. Separate rules should be established, as they have been in British Columbia, specifically tailored to family law disputes and allowed to flourish and evolve independent of the general civil rules. They should be stripped of ephemera not necessary to the bulk of family law disputes, such as rules on interpleader, receivers, creditors’ remedies and writs of mandamus, certiorari and habeas corpus. Rights relating to examinations for discovery, pre-trial examination of non-party witnesses, interrogatories and notices to admit could likely be abbreviated and simplified to avoid unnecessary expense and complexity. Too often litigants, and lawyers, are under the impression that a remedy should be sought merely because it can be sought.

While we’re at it, why not give life to the objects provisions that merely serve as a garnish to most rules of court? It would be lovely if family law disputes received only that level of process which is necessitated by the importance of the issues in dispute, the circumstances of the parties and the interests of any affected children. However, I’m aware of only a few courts, in Ontario, which use the objects provisions of their rules to reshape, adapt and truncate trial processes. The just, speedy and inexpensive resolution of family law disputes should be the lens through which the rules of court are interpreted and applied.

Second, I suggest that the legislation governing family law disputes be rewritten and simplified, perhaps following principles like these:

1. Legislation should be written in plain, unambiguous language. Someone with a Grade Eight education who is reasonably fluent in an official language surely should be able to read the legislation governing their dispute and understand their rights and responsibilities without a dictionary or the need to refer to other sources of the law.
2. Legislation should be self-contained. A person involved in a family law dispute should be able to understand their rights and responsibilities without having to apprehend the potential application of case law and then conduct the daunting legal research necessary hunt it down. To the extent possible, all of the law on a matter addressed by a statute should be contained in that statute.

From these principles, it follows that legislation should also be drafted to minimize judicial discretion. I fully appreciate the desire of the court and counsel to provide custom-fit justice, but when a statute says you can have half the family assets or more than half the family assets, who wouldn’t ask for more than half? If it says you can pay less child support if the table amount is unfair, who wouldn’t claim that the table amount is unfair? I suggest that reducing discretion will narrow the range of potential outcomes and thereby: increase the certainty that a specific result will obtain; reduce conflict by reducing the issues available to argue about; and, shorten the amount of time required to resolve a family law dispute. Yes, some litigants will suffer an unfair result, as occurs from time to time at present, but I suspect that the vast majority of litigants will benefit from such a change.

It likely also follows that the governing legislation should be simplified. British Columbia’s new Family Law Act, a fantastic and forward-thinking piece of legislation, somehow requires 260 operative sections to get the job done, while the federal Divorce Act gets by with about 30 operative sections. I’m not saying that simplicity and ease of comprehension can always be measured by brevity, but I will observe that the Divorce Act manages to deal completely with initial applications for child support in 501 words, headings included, while the British Columbia legislation requires about 1,789.

The list of adaptations and alterations that might help litigants without counsel better negotiate the family justice system continues, of course, and could include the codification and simplification of the rules of evidence, the rewriting of legislation to eliminate adversarial language and presumptions, and a reorientation of the dispute resolution default setting from litigation to processes that take place outside the courthouse. (Why is it that we direct the bulk of the funding for family law disputes toward the most destructive dispute resolution process, anyway?)

There is, however, a fanciful and palpably quixotic dimension to these heresies. Although I believe that public legal education alone is not going to help litigants transit the justice system, I recognize the immensity of the inertia that inclines us toward the status quo and I acknowledge that there are very good, sensible reasons why the system is the way it is, despite my inclination toward burning it all down and starting over. Nonetheless, something needs to change and the changes to date are not enough. Perhaps thinking about judicial processes the way that people who aren’t legal trained think about them is a good place to start.

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.