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Broken system needs an overhaul

Speaker's Corner

Bringing paralegals into a broken court system is not the solution to providing efficient, cost-effective access to the legal system. The court system is complicated and arduous. There are too many rules, steps and delays, leading litigants to feel they are simply involved in a jumble of procedures without dealing with the substance of the problem. How do we fix a family law system that is failing the public?

The family law bar felt that the sensitive nature of family law cried out for its own rules. But I believe more rules lead to more procedure and, hence, more costs. The idea behind the Family Law Rules was that, despite being in litigious surroundings, somehow case and settlement conferences were going to resolve matters in a friendlier fashion. It failed to recognize litigants involved in court actions, especially family matters, are often hostile and aggressive toward each other, and all the case and settlement conferences in the world are not going to change that. Ultimately, money or anger wane, and most matters do settle. The question that persists is how can a litigant achieve more of their desired results in a system fraught with too many rules and procedures.

There are many issues. For one, clients are rarely ready to settle the issues at case conference. The parties are fresh in the litigation, disclosure may not be complete and parties don’t have enough information. These conferences have to become more effective.

In order to achieve this, I suggest that an Affidavit of Document or Certificate of Disclosure be mandatory within 30 days from the close of pleadings, accompanied with complete disclosure. After the 30 days, the other party has 10 days to provide a request for information, to be answered within 30 days, including an affidavit explaining best efforts made if disclosure is not complete. In my opinion, a case conference should not be heard until the above is complete, except in rare cases. This will permit all participants to have a fulsome case conference on issues of equalization and support and judges to make substantive orders and provide direction. Precious court time should not be used to deal with something as simple as financial disclosure. Judges have to start sanctioning clients who do not provide meaningful disclosure and be ready to discuss financial issues, such as sale of property, at case conference. Disclosure motions should be rare and proper readiness the norm.

Here’s another idea. Custody and access issues are more difficult — can a judge not make an order for access after hearing both sides and concluding there is enough evidence before him at case conference? The litigants can put forward their positions, affidavits are rarely cross-examined and if the judge feels there is no danger to the child, why not make a temporary order right there? The formality of a motion is not always needed, and if we wish to maintain the time-honoured tradition of sworn affidavits, certainly the contents of the conference can be sworn. Both the judiciary and legal community are comforted by a formal motion and sworn affidavit where in many cases there is no danger to the child — just two stubborn people who cannot agree on access. We need to change how we think in order to speed the process.

Parenting plans and complete offers for custody and access should be mandatory and updated just like the Net Family Property Statement and Financial Statement.

We are in an age where children have access to a great deal of information and are heard more than any other generation. They have laptops, smartphones and the internet. Children are unwittingly part of litigation no matter what age. Parties that are in court are usually incapable of keeping their children out of the litigation whether deliberately or not. Despite this fact, we are still grappling with whether children should be seen but not heard. There is an elaborate system of children’s lawyers to investigate families that is no less intrusive and stressful than a judge directly speaking to a child. The problem is they often take an enormous amount of time causing frustration to the parties. Why should a 12-year-old not have a right to be heard in court by a judge without lawyers present and no parents?

As well, the concept of case management should be expanded. Why can a judge not hear both a conference and motion? Would the cumulative knowledge of the case not be beneficial to both the judge and the parties? I suggest knowing the background and the various previous orders would move the case along with greater efficiency. A telephone conference with a judge on an issue addressed in court weeks earlier would help promote settlement without the need for costly formal procedure. Management requires a case to move along in a timely and cost-efficient manner with deadlines strictly adhered to.

Supreme Court of Canada Justice Andromache Karakatsanis said it best in the case of Hryniak v. Mauldin. Hers are bold words, yet we are still not listening. 

“Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial,” says the ruling. “Without an effective and accessible means of enforcing rights the rule of law is threatened.”

The rules are in place to obtain speedy, cost-efficient justice. It is clear that conventional use of the rules is not working — it’s time to be unconventional as procedure has got in the way of substance. The attorney general needs to take bold steps to fix the system and lawyers and judges need to change the way we think. Adding more representation to a broken system is not going to fix the problem.            

Murray Maltz is a Toronto-based family law lawyer who has been practising for more than 30 years. He can be reached at 416-398-6900 or lawmaltz@on.aibn.com.

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