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Chiefs seek unified Family Court

|Written By Robert Todd

Ontario’s judiciary last week celebrated the start of a new year with pomp and circumstance - but the new-look Opening of the Courts ceremony also served as a forum for two chief justices to sound off on the province’s struggling family court system.

Ontario’s top judges, from left to right, Chief Justices Heather Smith, Warren Winkler, and Annemarie Bonkalo, preside over the Opening of the Courts ceremony.

Chief Justice of Ontario Warren Winkler said governments need to funnel more money to the system, as judges can only do so much on their own.

“Family law matters which are now understood to be complex, social problems that require multidisciplinary and co-ordinated responses, must attract the resources they require,” said Winkler in calling for the creation of a “properly serviced, unified family court system that meets the needs of Ontarians.”

Winkler said it’s up to governments, judges, lawyers, and service providers to work together on the initiative.

“I hope that the minister of justice and the attorney general of Ontario have a chance to begin their discussions after today’s ceremony,” said Winkler.

Chief Justice of the Ontario Court of Justice Annemarie Bonkalo noted her court’s judges deal with the bulk of family law cases - 27,000 child-protection, custody and access, and support cases.

“Handling such a high volume has not been easy,” said Bonkalo. “Some can be dealt with relatively quickly with the assistance of counsel, but many require our judges and justices of the peace to make careful assessments based only on the evidence before them. Some take an inordinate amount of time to bring to a conclusion because of their complexity and the amount of evidence.”

With that in mind, Bonkalo said, “I worry that our court might not always be able to meet that challenge.”

Bonkalo notes in an interview with Law Times that while some unified family courts exist in the province, they’re unevenly distributed.“In the east, for example, there are only three Ontario Court of Justice family courts,” she says. “It should be unified throughout the province.

It would mean that all of the resources, all the counsel, all the public would go to one set of courts.”

A high proportion of unrepresented litigants in family and criminal cases forces judges and justices of the peace to drain court time so that litigants know the basics of conducting a case, said Bonkalo at the ceremony.

“I support the chief’s call for review and reform and the implementation of a unified Family Court across the province, a call also made by my predecessor chief justice [Brian] Lennox,” she said.

“The time for a full review of family justice in Ontario has arrived, and the judges of the Ontario Court of Justice are ready to assist and participate in such a review.”

Attorney General Chris Bentley told reporters after the ceremony that his office is considering whether legislative changes to family law are required.

“We’re also looking at ways to streamline and simplify the process,” said Bentley.

He acknowledged, however, “the fact that we don’t have a more completely unified Family Court presents some challenges. The fact that it has been under-resourced in terms of federal judicial resources has posed a challenge,” said Bentley.

“The fact of the matter is, litigants in family proceedings need to have upfront supports, and a simple, streamlined procedure so we can get to the decision point faster.”

Bentley said it’s up to the federal government to create a unified family court system.

“We have supported the call for an increasingly unified Family Court, but it’s not within my power to make that happen,” he said.

The federal Justice Department didn’t respond by press time to Law Times’ request for comment.

Superior Court Chief Justice Heather Smith noted that federal legislation has created 20 new superior court judgeships across Canada to deal with family court demands. Six of the eight that will go to Ontario’s courts have been appointed, she said. (Bentley said the province has asked for 12 such judges.)

“The Superior Court is extraordinarily grateful for all of the supportive efforts, to date, by the bar, the Ontario Ministry of the Attorney General, and, particularly, by the federal minister of justice, in addressing this challenge to our stretched judicial complement,” said Smith.

She also plans to target family law as an area for improvement, and said on top of her list is “to improve family support services to recommend standards for all family proceedings in whatever court.”

The Superior Court’s family case manager pilot project in Ottawa has aided the management of such cases, she said, while the court also has started putting together a best-practices guide for case conferencing.

Bonkalo, meanwhile, also singled out guns and gangs prosecutions in Toronto as a strain on the Ontario Court of Justice’s workload, saying the court otherwise has “continued to address backlog with some success.”

Bonkalo tells Law Times that the court is weighed down from September to December, as it allots two judges and two courtrooms to guns and gangs cases.

“It’s something we have to deal with, but it also means it takes up a huge amount of time and court space,” says Bonkalo.

Smith, speaking on her court’s efficiency, issued a warning at the ceremony regarding a recommendation in Coulter Osborne’s civil justice report recommending Small Claims Court’s monetary jurisdiction be raised to $25,000 from $10,000 because the court runs so well.

“I simply want to express a note of caution,” said Smith. “We could lose that effectiveness and efficiency if the monetary jurisdiction of the Small Claims Court is extended, without the necessary and concurrent additional administrative and judicial resources to support the increased caseload.”

The chief justices also used the Opening of the Courts as a venue to highlight the areas they believe their courts succeeded in 2007 and the start of 2008.

Winkler applauded the “cameras in the courtroom” pilot project, which saw live Ontario Court of Appeal proceedings broadcast on the court’s web site. Over 18,000 hits were recorded for that feature, he said, adding, “Public feedback was very positive.”

A new digital recording system test-run led to its permanent use in courts; legal assistance programs “remained strong”; a judicial information technology organization has been created; and the appeal court’s workload “remained steady,” with most judgments delivered within a six-month target, said Winkler.

Smith praised her court’s memorandum of understanding with the attorney general’s office, which in part helps back judicial independence; a focus on improved accessibility; and the implementation of mandatory pretrial conferences.

Bonkalo singled out her court’s “family law vision statement,” which will guide the court’s policy decisions, and an upcoming biennial report among its recent accomplishments.

This year’s Opening of the Courts ceremony included a few changes, compliments of the new chief justice.

The ceremony was moved from January to September, a press conference with the chief justices was nixed, the Ontario Justice Education Network’s Chief Justices’ Award was awarded during the day’s events, and a reception was held at the Law Society of Upper Canada after the ceremony.

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