Family Court judges warn bill would have ‘unintended consequences’

A group of Ontario family court judges has taken the rare step of weighing in on a political debate, saying proposed child custody reforms in bill 133 would have “unintended consequences for the administration of justice.”

“In the end, a difficult process will be made even more difficult for the children and families who require custody orders from our court,” state the 12 family law judges of the Ontario Court of Justice in a letter issued to Queen’s Park’s standing committee on social policy.

The committee is considering the legislation introduced in November 2008. Highlights of the bill include measures to treat breaches of restraining orders as criminal offences, the introduction of automatic annual financial disclosure to cut down on battles over child support, and simplification of rules relating to the division of pensions.

The family court judges, however, are concerned with clauses in the bill that would alter the handling of custody applications, which aim to prevent a recurrence of circumstances surrounding the tragic death of Toronto’s Katelynn Sampson.

Custody of the seven-year-old girl had been granted to Donna Irving and Warren Johnson, as her mother felt unable to care for the child due to a drug addiction. Irving and Johnson now face first-degree murder charges.

Premier Dalton McGuinty promised to take action after it was revealed that Irving’s criminal history for drug use, violence, and prostitution wasn’t revealed at the custody hearing.

While noting the measures aim to improve the process surrounding custody orders, the judges state that the proposals would hinder the administration of justice.

“In our view, these sections will be difficult, expensive, and burdensome to implement, if they can be implemented at all,” the judges write. “If they are implemented, we believe custody applications will become so complicated, that many applications will be delayed, deferred, or withdrawn.”

They later state, “Our greatest concern is that, in the end, the family law process will be less accessible to the people of this province.”

The judges disagree with the notion that they are too busy to put a child’s best interests at the forefront in cases. But they said the system is “critically underpopulated by lawyers,” which places a burden on judges.
They noted that the lack of lawyers is “likely most acute” in the provincial family courts, where less wealthy parties go to deal with their family law issues.

“These litigants cannot afford lawyers and cannot qualify for legal aid,” the judges write. “They cannot afford child psychologists, custody assessors, parenting co-ordinators, and private mediators.”

The judges point out that in recent years legal services in Ontario courts have been delivered mainly by duty counsel paid on a per diem basis by legal aid. But they note that “the working poor” don’t qualify for that service and go unrepresented, while duty counsel are too busy to offer adequate service to those who are eligible.

The judges said that they face a major challenge in sifting through relevant facts with unrepresented parties. They suggest that it would be best left to the Office of the Children’s Lawyer to conduct an investigation in custody cases where parties are unrepresented, or when an application is unopposed and judges fear key information is missing.

“This solution addresses a critical problem in the courts while respecting the need for judges to maintain their traditional and crucial role as independent adjudicators in the adversary system,” state the judges.

“Social workers employed by the Office of the Children’s Lawyer have the training, skill, and knowledge necessary to conduct such investigations and to provide a recommendation to the court.”

The judges suggest that, if bill 133 is adopted, it would be up to judges to conduct the investigations “that should be done by the trained investigators employed by the Office of the Children’s Lawyer.”

The judges go on to suggest that a number of the proposed requirements fail to consider “the facts on the ground” in courts. They suggest a “manifold increase” in duty counsel would be required to assist litigants with the preparation of newly required affidavits, filing of police record checks, and requests for child protection records.

“The timeline provided for organizing the information required under these provisions will seriously delay cases and frustrate the court’s ability to make necessary decisions in a timely manner,” the judges write.

They conclude their 19-page letter stating, “All of these concerns we have raised in this letter suggest to us that if this legislation is implemented as drafted, family court will be less accessible to those who require its services.”

The letter was signed by justices Marion Cohen, Geraldine Waldman, John Kukurin, Harvey Brownstone, Wendy Malcolm, Marc Bode, Penny Jones, Brian Weagant, Doug Maund, Heather Katarynych,
Stanley Sherr, and Robert Spence.

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