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Province’s family court system ‘broken’

|Written By Tim Naumetz

OTTAWA - Family court lawyers are stunned at learning how the government and opposition MPs recently rushed a bill through the House of Commons that touches the heart of Canada’s justice system - the courts.

“What’s more fundamental to our system, our democracy, than access to justice? Without that system, we really have anarchy,” says Alfred Mamo.

They say the Harper government, with the opposition turning a blind eye, has no interest in addressing a “crisis” that grips family courts in particular, especially in Ontario.

But Liberal Senator George Baker tells Law Times the Senate will give the bill the attention it deserves and could take “months” debating it and hearing witnesses in the Senate’s legal and constitutional affairs committee.

The bill, C-31, proposes to add a modest total of 20 judges to federally appointed superior courts, to be allotted among all 10 provinces and the territories. It is not even a drop in the bucket compared to the existing complement of 984 judges in the superior courts, lawyers say.

Unlike a 2005 Liberal bill that would have specifically added 27 new family court judges, the Conservative legislation does not mention the family court system, and instead designates seven of the 20 new bench positions for a tribunal the government is establishing to settle long-standing aboriginal land claims.

That leaves only 13 new judicial posts for a system already bursting at the seams, especially in Ontario.

The bill received only one hour of debate as it sailed through the Commons in January.

By the time the House rocketed it to the Senate on March 14, it had received only one hour of study by the Commons justice committee. The only witnesses were from the government: Justice Minister Rob Nicholson, Catherine McKinnon, the department’s counsel for judicial affairs, Judith Bell, another counsel for judicial affairs, and David Near, judicial affairs adviser.

 To the disappointment of Alfred Mamo, a London, Ont. lawyer who led an exhaustive study last year into Ontario’s family courts, the bill has no specific provision to designate any of the judges for family court.

Mamo’s report, still under consideration by Attorney General Chris Bentley, calls on the provincial and federal governments and Ontario’s chief justices to hammer out an “immediate crisis-management plan” to address the judicial shortage in family court.

Mamo tells Law Times the shortage is especially acute and family courts are “crucially under-resourced” in the swelling urban centres that stretch from Oshawa-Whitby to Barrie, and adds Ottawa alone requires at least three to four additional judges for its Family Court.

He says the shortage is creating a two-tier system - with many parents choosing the costly alternative of private mediation and arbitration instead of the public court system - because of the delay in settling in front of a judge.

“A lot of cases are settling, not because they think it is a just result, not because they think it’s a provident resolution of the issues, but simply to get it done; they just can’t continue to fester in the system,” Mamo says.

“What’s happening is people are going to senior practitioners who will charge $250, $400, $500 an hour to do mediation,” he says. “The courts are an institution of justice,” he says. “Access to justice means access to justice that’s meaningful, without delay, with the least amount of costs and with judges who are knowledgeable sitting on the bench.”

Estranged parents who can’t afford those rates must stay in court by relying on legal aid or representing themselves, which clogs the court even more as judges take time to assist clients who represent themselves.

Gerald Yemensky, a family lawyer in Ottawa who specializes in mediation, agrees the family court system is in desperate need of the kind of attention the federal bill failed to devote to it.

“I can tell you that the system is broken,” Yemensky tells Law Times.

He says it can take estranged parents up to six weeks just to reach the stage of a case conference in Ottawa.

“If you had a relatively urgent situation, say for example that someone has left with the kids but they’re still in town, they’re just not letting the other parent see them, it could be two to three months at a minimum before that issue was addressed, before you reach the judge,” he says. “To get to a trial, it could take at least a couple of years.”

Mamo says he is perplexed by the speed at which the judge bill sailed through the Commons, and he questions why the government did not seek advice about determining how the judicial complement should be increased.

“Everyone’s afraid of crunching the numbers, and I’m not sure why,” he says. “What’s more fundamental to our system, our democracy, than access to justice? Without that system, we really have anarchy.”

He says the government has failed to come to the aid of those who need it most - the children of broken marriages.

“The reality is when you look at the number of children that come from separated families, and they’re innocents in all of this, we need to have a system that is good for them, and their parents need to have a way of resolving issues,” he says.

Baker tells Law Times senators are wary when they receive legislation that is rushed through the Commons with no scrutiny, adding the Senate legal and constitutional affairs committee will likely invite all provincial attorneys general to hearings, and “anyone else who wants to come.”

Mamo says he believes the federal government ignored family court because of arch-conservative elements in Prime Minister Stephen Harper’s party who do not want to promote divorce.

“They really have no interest in promoting the family [court] agenda. It’s pretty obvious,” he says. “They want what they call the ‘traditional intact family,’” he says.

“But you can’t ignore [divorce], it’s a reality of the 21st century.”

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