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‘Risk-based’ approach defies definition

|Written By Tim Naumetz

OTTAWA - The Justice Department is unable to explain an obscure reference in the recent federal budget that announces it will implement a “more risk-based” approach to using its legal resources to save money within government.

The vague announcement in the Jan. 27 budget also promised the department would shift the savings into family law programs Justice Minister Rob Nicholson announced last September, which  themselves have not yet been introduced.

Family law counsel are perplexed by the budget statement, and say tied-up family courts desperately need instead significant additions to their bench strength and more legal aid to help the growing number of divorcing parents who are forced to represent themselves.

The little-noticed statement on page 276 of the Jan. 27 budget explains only that the department intends to save $19.5 million over the next three years as part of a government-wide initiative to cut costs by streamlining or reducing departmental operations.

The Justice Department conducted an internal review of its spending through 2008 under an austerity program launched by the Harper government following a previous budget.

“Through its strategic review, Justice Canada assessed all areas of its operations to find ways to improve service delivery and streamline processes in developing policies, laws, and programs to maintain Canadians’ confidence in our justice system,” the budget document says.

“Justice Canada is changing the way legal services are delivered across government by implementing a more risk-based approach in using legal resources,” it adds.

“The savings generated by Justice Canada will be used to strengthen and improve access to the family justice system by assisting families seeking information on their legal rights and obligations.”

Lawyers say the budget reference to family assistance is also vague, offering no explanation or information to flesh out family law commitments Ottawa made last September.

A department spokesperson did not explain in response to e-mailed questions from Law Times what the department meant by using the term “risk-based” to describe the new approach it intends to take to provide legal services to other government departments.

“The reallocations that are part of the budget announcements are currently being reviewed by the department,” said Carole Saindon, a senior media relations adviser with the department.

“For this reason, it would be premature to speculate.”

Asked to explain the reference to the department’s plan to improve access to the family justice system by “assisting families seeking on their legal rights and obligations,” Saindon was equally vague, referring Law Times to Nicholson’s announcement last September.

Nicholson made the announcement only a day before Prime Minister Stephen Harper called a federal election for Oct. 14.

That announcement promised funding of $122 million over five years, including $16 million a year for the provinces and territories “to encourage parents to comply with their family obligations, including support and access obligations.”

The announcement went on to explain the money would help support mediation, parenting education, and child-support recalculation services - “which all help to reduce costly and stressful litigation.”

But Grant Gold, the incoming chairman of a Canadian Bar Association section on family law, said lawyers and others involved in the area have heard nothing since then.

Gold, counsel at McCague Peacock Borlack McInnis and Lloyd LLP, said a government official attended a subsequent meeting on the issue in October, but had little to add.

“Someone from justice was there and all they were able to do was give us that press release,” Gold tells Law Times. “There was really no discussion at that point as to what that meant, other than ‘here is the press release.’

One of the biggest problems family courts continue to face is the need for more legal aid for parents who either don’t have the resources to hire counsel for long divorce proceedings or - likely in the case of women who have little in the way of personal wealth but share sizeable family assets at the outset of divorce - can’t qualify for legal aid certificates.

“Any program that I’m speaking at or attending you’re hearing everyone, be they judges, lawyers, or members of the public, complaining about the fact that people are attending in court on their own, and that is a huge drain on the system,” says Gold.

Heather McGee, another specialist in family law, says despite the 20 additional positions Nicholson added to the superior court last year family courts, especially in Ontario, remain desperately short of judges.

“The resources we are looking for at the federal level are increased resources, meaning more family judges,” said McGee, a Markham practitioner and former president of the Ontario Bar Association who chairs the association’s access to justice initiative.

“It’s an area where the federal government could really step up,” she says.

McGee adds the family law community is not looking at new judges to beef up the system at the trial end.

They are needed for earlier stages, to supervise case conferences that lead to compromise settlements earlier in the divorce and avoid acrimonious settlements at the conclusion.

“The longer the process goes on, the more pain there is,” said McGee.

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