“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.