Thomas Dart, Partner, Family Law

We are in the midst of an Ontario election. The campaigns of the three leading parties can only best be described as adversarial. As voters, we should ask: Is the adversarial nature of the campaign helpful to the governance of Ontario? I think most of us would answer most emphatically in the negative.

We have numerous problems in Ontario mostly caused by a declining economy. Is the best method of solving these problems competition between adversaries? What if the three parties got together and collaborated – throwing their resources and obvious intellect at finding a common solution to these problems? What if they involved some grassroots members of our society? In other words, can we change the cultural norm where we automatically think that the adversarial system will lead us to a positive solution?

Similarly, in the family law field, many more professionals who are involved in assisting families with relationship breakdowns are beginning to seriously question the adversarial system as the best method to resolve family law problems. In fact, for many years now, family law lawyers have been using non-adversarial approaches to the resolution of family law disputes. Governments are also beginning to shift family justice resources toward mediation services.

In April, 2013, the National Action Committee on Access to Justice in Civil and Family Matters noted in its report that, its “vision of a family justice system and the recommendations for change” should be based on several guiding principles[1]:

  • minimize conflict – programs services and procedures should be designed to minimize conflict and its negative impact on children.
  • Collaboration – program services and procedures should encourage collaboration and consensual dispute resolution should be at the center of the family justice system provided that judicial intervention is readily available when needed
  • client centered – the family justice system should be designed for and around the needs of the families that use it
  • empowered families – families should, to the extent possible, be empowered to assume responsibility for their own outcomes
  • integrated multidisciplinary services – services to families going through separation and divorce should be coordinated, integrated and multidisciplinary
  • early resolution – information and services should be available early so people can resolve their problems as quickly as possible
  • voice, fairness and safety – people with family justice problems should have the opportunity to be heard and receive the services and processes that are respectful, fair and safe
  • accessible – the family justice system has to be affordable, understandable and timely
  • proportional – processes and services should be proportional to the interests of any child affected, the importance of the issues and the complexity of the case

Family breakdown affects most of us in one way or another over the course of our lifetime. Those of us who have never separated certainly know a good friend or close relative who has experienced a relationship breakdown and we have witnessed firsthand the suffering which it can cause. When we recognize that 40% of marriages break down, we can assume that probably another 30% of the population experiences the repercussions. Grandparents lose rights to see their grandchildren, for example. The divorce breakdown rate does not take into account the number of common law relationships that fail as there is no means to track those. So the information we have regarding the percentage of families who actually experience family breakdown is probably low. We all know as well that children suffer the most when their parents separate.  Family breakdown impacts so many other aspects of our society – it can create physical and mental health issues, job loss, engender criminal conduct and so on.

There are several groups, consisting of lawyers, mental health professionals and judges, at work trying to convince government that these issues should be an essential part of the current Ontario election platforms of all parties. One group wrote a letter to all three political parties asking them to put this on their agenda.  Other groups are meeting with government and among themselves to strategize implementation of the reforms. The Liberal party has at least put the issue on their platform – but it is not getting much publicity. It was not even mentioned in the recent debate. In any case, the parties should not make this yet another adversarial issue – all three parties should adopt this platform – no more studies are needed – action is required now.

A collaborative effort for reform among the leaders of our Province would signal to our families who are suffering that they can set aside adversarial differences in the interests of improving their lives. That signal would perhaps begin that major shift in culture which our National Action Committee has so strongly endorsed. Who will speak for our families? Who will help them? Where is our leadership?

 


[1] Meaningful Change, Beyond Wise Words, April 2013, pp. 3-4