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Make court the alternative, report urges

|Written By Michael McKiernan

The province should back up its vocal support for a new report recommending a major overhaul of the family law system with money to pay for it, one of its authors says.

Toronto lawyer Barbara Landau co-wrote the report presented to Attorney General Chris Bentley last week.

A collaboration between the Ontario Bar Association, the ADR Institute of Ontario Inc., and the Ontario Association for Family Mediation, it makes several recommendations designed to remove the conflict the authors say is at the heart of the current family law process that stem from a gathering of lawyers, judges, mediators, mental-health practitioners, and members of the public with experience in the system held last November.

“If we could get some of the ideological changes, I’d be happy as a starting point,” Landau says. “But in the long run, there has to be some commitment of funds to this.”

The authors want the province to train specialized case assessment co-ordinators to steer as many families as possible away from the courts and thereby leave judges free to deal with the most difficult matters.

In those instances where litigation is the only option, they want greater judicial continuity, with specialized family court judges seeing each case through the system from start to finish.

The province is already on board with another preliminary recommendation, mandatory information sessions for litigants, with pilot projects rolled out in Brampton and Milton, Ont., earlier this year.

Bentley recently announced the province would expand the program to all of its Family Court branches and was full of praise for the report’s aims of speeding up resolutions, reducing costs, and increasing efficiency.

“What you say makes such incredibly good sense,” he said in accepting the report.

But Bentley has consistently warned family lawyers to leave their funding concerns at home because financial constraints mean he can’t listen to them. “There isn’t a lot of extra money,” he said. “It’s not always about resources; it’s about the determination to make something happen.”

But Landau fears the lack of financial commitment could eventually put the whole project at risk. In Brampton and Milton, local lawyers give information sessions and act as dispute-resolution officers without getting paid.

“Funding is an enormous hurdle,” Landau says. “Right now, everything is being done on a volunteer basis, which is great, but how long can it last?”

She thinks even a small honorarium would encourage lawyers to give up their time.  

The report makes a number of suggestions for possible funding sources, including higher court fees for those who choose to litigate and the creation of a provincial lottery to fund the family law system.

The report comes just weeks after Ontario Chief Justice Warren Winkler called for a dramatic revision of the family law system in the province at the Opening of the Courts ceremony (see "Winkler calls for 'fresh approach' with expanded mandatory mediation"). His proposals include a demand for compulsory mediation before couples can gain access to the court system.

Although her recommendations don’t go as far as calling for compulsory mediation, Landau says they should be radical enough to satisfy Winkler, who said “fine-tuning and rationalizing the present system” was ineffective.

Landau, who is also a psychologist and mediator, says the report aims to turn conventional thinking about family law on its head. “There’s a lot of talk about alternative dispute resolutions. What we want to talk about is court as the alternative. It should be the fallback when other, more co-operative processes don’t work.”

The court system fuels conflict at a time when vulnerable families actually need support, according to Landau, who notes an increased focus on mediated or collaborative settlements would make it easier for people to live with the results.

“After a separation, people make the assumption that they will start with a clean page, but it’s not true. If they want to be involved in the lives of their children, they’re going to need to figure out a way to get along. The focus for mediators is how to preserve a co-operative relationship between people who have to deal with each other forever.”

In Landau’s view, the whole system points towards an adversarial outcome, including through government-funded supports such as legal aid. “Right now, legal aid is tied to the court: how many hours to prepare an affidavit, how many hours to prepare a motion, how many hours arguing it,” she says.

“We suggest certificates are not just given out to lawyers to litigate but given out to mediators and collaborative lawyers to resolve cases without going to court.”

At her family law practice in Kitchener, Ont., Glenda McLeod says she has seen too many litigants operate a “scorched-earth policy” in court that leaves one party with all of the spoils: money, the house, and custody of the kids.

The other party, meanwhile, ends up in ruins. “I don’t see how any counsel, on either side, can feel good walking away from that situation,” she says.

McLeod looks forward to seeing some of the proposed reforms make their way to Kitchener because they’ll force lawyers to think about litigation differently.

“If you go in with that litigious attitude every time, the client doesn’t always benefit and neither do the kids,” she says. “I think it is the responsibility of the bar to put people in a stream that gets them out of court quicker.”

But McLeod could be waiting for some time. According to the report, the province’s family court system “creates serious inequity in access to justice for all families.”

The 17 locations with a Family Court branch of the Superior Court offer access to comprehensive adjunct services, for example, while in other places such as Kitchener, parties must wait longer for them or simply do without.

  • People will pay.

    Tim Casey
    If the Family Court systems adopted a "binding arbitration" system where mommy, daddy and the children each had a mediator acting for them, with the 3 mediators deciding ALL of the issues, the parents would pay a small monthly fee of $50 each plus a $500 fee for each "mediator meeting" to resolve the issues. This would end most of the stupidity of divorce cases.
    In my case, I would have spent less than $10,000 in legal fees instead of the $37,000 that I did. ( She spent over $50,000.)
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