In our present family justice system, disputes are presumptively resolved in court, with provincial and territorial legislation acknowledging the possibility of out-of-court resolution with differing, and sometimes indifferent, degrees of emphasis. The Canadian common law tradition of resolving family law disputes in court dates to the establishment of the English Court for Divorce and Matrimonial Causes by the 1857 Divorce and Matrimonial Causes Act, but, apart from custom and legislative preference, there is otherwise no particular reason why it must be the courts which deal with family law disputes.
Traditional court processes have always struck me as the worst possible way of resolving most family law disputes, with the exception of truly intractable disputes and those involving threats to persons and property. (A view shared by many family law lawyers, according to recent research from the Canadian Institute for Law and the Family.) While many courts are expanding the number and nature of non-adversarial dispute resolution services available, such as the family cases conferences provided by the Provincial Court of British Columbia or the judicial dispute resolution hearings available in the Alberta Court of Queen’s Bench, adversarial procedures remain the dominant feature of the litigation process.
However, since the end of the First World War, Canadian governments have increasingly delegated the resolution of varying classes of legal issues to administrative tribunals. Academics Colleen Flood and Jennifer Dolling, in Administrative Law in Context, write that the primary reasons for the establishment of administrative tribunals include:
- “the need for greater specialization and technical or subject-matter expertise;” and,
- “a reluctance to enmesh courts in matters not suitable to judicial review because of their specific nature or the volume of decisions that have to be made.”
As a result, a host of tribunals exist across Canada, including utilities commissions, which rely on the technical expertise of engineers and economists, and residential tenancy tribunals, which address a large number of low-value disputes that would otherwise be dealt with by, and clog up, the courts.
Although administrative tribunals are quasi-judicial in nature and may be vested with the power to conclusively determine legal disputes, they are not courts. They are thus free, subject always to their enabling legislation and the principles of fundamental justice, to develop their own policies and processes, their own rules of evidence and their own dispute resolution methods, adversarial and otherwise.
The time has come, in my view, to experiment with an administrative approach to family law. I suggest that an administrative family services agency be established as a pilot project in a smaller centre, such as Lethbridge, Barrie or Kelowna, for a few practical reasons.
- Family law disputes are both commonplace and highly demanding of court time. According to a recent Juristat article, while only 34% of civil cases concern family law matters, these cases account for 56% of civil judgments and 61% of civil hearings.
- Self-representation is more common in family law matters than in other civil disputes. In some jurisdictions the rate of self-representation is as high as 80%, and the numbers continue to climb. According to studies by the Canadian Research Institute for Law and the Family, in 2016, a party was self-represented in a fifth of the cases of family law lawyers and in more than two-fifths of judges’ cases, and more than three-quarters of lawyers and judges attending the 2014 National Family Law Program believed that the number of self-represented litigants had increased over the previous three years.
- Family law is complex and highly fact-specific, and involves the application of common law and equitable principles, a host of case authorities, as well as legislation. Family law disputes often involve other areas of the law, including criminal law, child protection, tax law, the law of property, the law of contracts and torts, bankruptcy law, creditors’ remedies and company law. Family law disputes also involve difficult psychosocial concerns that are intangible, sometimes intractable, and always difficult to manage in the court system.
- Implementing a scalable, evaluable pilot project in a smaller centre would, I think, use fewer resources, be easier to organize and adapt, and facilitate public engagement. It could also test other proposals intended to improve access to family justice, including triage processes and early neutral evaluation processes.
An integrated family services agency
The sort of agency I have in mind would be composed of three departments. The first two, a decision-making tribunal and a separate investigative commission, would be organized in much the same manner and with much the same interrelationships as exist between human rights tribunals and human rights commissions. The third would consist of a family support centre aimed at providing assistance to families undergoing the restructuring process following parental separation. As a core guiding principle, all services, processes and resolution assistance provided by the agency would be proportionate to the complexity and importance of the matters at issue for each family.
Families would enter the agency through the family support centre, and be assigned a family guide, a sort of agency service navigator, who would remain attached to the family throughout its time in the agency. The centre would provide family members with services such as counselling, financial planning, money management training, parenting assistance, parenting after separation programming, negotiation support and legal advice. The guide would advocate for the family within the agency and ensure that the family is provided with the services it needs. The guide would also be the family’s liaison with the commission and tribunal, if it becomes necessary to engage those departments.
The family services commission would assist the family and the tribunal in gathering information, conducting assessments and performing calculations in the manner of a special master. The commission could assist and monitor disclosure, provide valuations of companies, pensions and real property, and prepare support calculations. It could investigate and make recommendations concerning a person’s income, especially where imputation is an issue, a person’s employability or a person’s capacity to parent. It could provide evaluative and non-evaluative views of the child reports and make recommendations as to the post-separation parenting arrangements for the children.
The family services tribunal would provide mediation services, at the direction of a tribunal member or the request of the family guide, as well as dispute resolution by arbitration in the event mediation fails or is inappropriate. Members of the tribunal would be experienced family law lawyers and retired judges with an interest in family law disputes, and might include financial experts and mental health professionals. The tribunal would have the power to subpoena witnesses and compel disclosure, make interim and final orders, and enforce its own determinations. There would be no right of appeal; judicial review would be available in respect of final orders only.
Where a family is without legal representation, arbitration hearings would be conducted on a non-adversarial inquisitorial basis; otherwise, hearings would proceed in a court-like manner with the assistance of lawyers. Tribunal members would have the ability to shape the hearing process in a manner that is proportionate to the importance and complexity of the issues, which might include: limiting the number of witnesses; limiting examinations in chief by, for example, requiring that all or some evidence be given by affidavit; allowing hearsay from identified sources; admitting unsworn material such as letters and emails into evidence; and, requiring that argument be provided partially or entirely in writing. Whatever approach the arbitrator takes to the hearing, the ultimate goals must be to ensure proportionality and procedural fairness.
The services provided to the family would remain available to the family after the initial determination of their dispute on an as-needed basis, to address issues that may arise in the future as the circumstances of the family continue to evolve.
Requirements and cost
Enabling legislation of some form, perhaps as a regulation to the local legislation on domestic relations that could be implemented by order in council, will be required. The governing legislation should:
- establish the commission and the support centre;
- establish the tribunal as an independent decision-making body;
- assign sole jurisdiction over claims under the legislation on domestic relations and relevant claims under the common law to the tribunal, and remove the jurisdiction of the civil courts;
- explicitly grant the tribunal the power to make interim, final and declaratory orders; make orders by consent; subpoena witnesses, compel production and make other procedural orders; punish for contempt; enforce its own orders; limit the procedural rights of parties misusing or frustrating tribunal processes; and, determine its own process, forms, rules, policy and evidentiary requirements;
- give orders made by the tribunal the effect of court orders for the purposes of enforcement and recognition in foreign jurisdictions;
- limit rights of judicial review to final orders, including consent final orders where allegations are made that, if proven, would vitiate a contract under the common law or the legislation on domestic relations; and,
- define the province’s or territory’s power of appointment in respect of tribunal members.
The agency will also require space. Ideally, at least the tribunal and support centre would be housed in the same premises.
The tribunal will require a panel of decision-makers. The initial panel for the pilot project could be composed of family law lawyers who do not practice in the local bar. Ideally these lawyers should be respected, creative, solution-oriented and trained in mediation and arbitration. The tribunal will need to generate forms, describe its process and define the range of procedural options that will be available.
Many of the services required by the support centre are already provided to families and separating parents. These services, and such others that may be necessary to complete the centre’s mandate, should be co-located in the agency’s premises for the benefit and ease of the family, to ensure institutional awareness of each service’s functions, promote a holistic approach to family separation and restructuring, and ease the work of the family guide.
Family guides will need to be hired. The guides should, I suggest, be social workers with experience in family systems, child development and family support services.
The commission will require a team of financial and mental health professionals, and should include clinical counsellors, social workers and psychologists expert in separation, grief, personality disorders, child developmental psychology and crafting age-appropriate parenting plans, as well as financial planners, accountants, valuators and actuaries.
The support centre, commission and tribunal will also require managers, and a director reporting to government should lead the agency.
Although the start-up cost would not be insignificant, I strongly suspect that the net operating cost of the agency would be less than the present cost of managing family law matters through the court system as well as the various court-attached and independent supplemental services presently provided. Tribunal members would be paid at the rate of provincial court judges, but the tribunal itself would not require the elaborate array of bureaucracy and support needed by the court system. Most of the services to be provided by the commission already exist but would require harmonization to avoid duplication and encourage streamlining of services. The commission, however, is largely a brand-new cost, save for services like parenting assessments that are already provided by some provincial and territorial governments. Members of the commission could be hired on a part-time or contract basis.
Obvious stumbling blocks
I see at least three major challenges with this proposal, and I’m sure there are more. First, it is new, and the change will doubtless stir some resentment. Lawyers would, however, continue to have an important role in this system, and would continue to represent clients at the tribunal level. Second, there may be resistance from the bench, who may be displeased with the introduction of non-judges as decision-makers on matters that have always been within their bailiwick. On the other hand, some judges may see the pilot project as offering welcome relief from often unpleasant and complex cases.
Thirdly, and most importantly, there is the matter of the Divorce Act and the associated issues under s. 96 of the 1867 Constitution Act. Unless these are addressed, married spouses will always be able to opt out of the family services agency process, including the tribunal. This may not be fatal to a pilot project, but it will be a problem in the future if the agency proves successful. Ideally, the federal government would amend the Divorce Act to strip it of all relief except that relating to the making of divorce orders and determining the status of foreign divorce orders, as I have suggested elsewhere. Alternatively, the Divorce Act could be amended to include administrative tribunals within the meaning of “court” at s. 2(1) of the act.
This proposal is far from complete and would benefit greatly from brainstorming with users of the present system, as well as practitioners and academics skilled in administrative and family law. However, despite its manifold deficiencies, I can see a number of benefits from the general concept of a family services agency, including:
- addressing the social, psychological and legal consequences of parental separation in a fully integrated, holistic manner, with dispute resolution processes cohoused with the necessary family supports;
- improving the coordination and availability of family support services, including legal, educational, counselling and resolution resources;
- developing flexible dispute resolution processes, freed of the constraints imposed by judicial processes, that are scalable and capable of meaningfully responding to the relative complexity and importance of the issues facing different families;
- developing processes, rules and forms that are intuitive, comprehensible and manageable by those without legal training;
- institutionalizing non-adversarial dispute resolution processes and placing them on par with the tribunal’s adversarial process;
- providing post-resolution family support services to help families cope with the changes time inevitably brings; and,
- making the growth and wellbeing of children, and the future functioning of separated families, guiding principles and key benchmarks of the successful resolution of family law disputes.