Thomas Dart, Partner, Family Law

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Are there any similarities between the Olympics and the family law court system? Well…..if you are caught up in a family law dispute with your life long partner, you may think so. What are the differences? 

There is competition – many times, particularly if you are in court, the adversarial system drives you to seek out a ‘win’. Much like the Olympic judges who set the marks for the figure skaters, the Family Court Judges have a lot of ‘discretion’, it seems, to make life changing decisions for you and sometimes you just don’t know how or why the decision came out the way it did. You did your best, your best presentation ever, but somehow, you lost – not even a medal !!…..if you are caught up in a family law dispute with your life long partner, you may think so. What are the differences?

The cost – well not 52 billion dollars, but in your case, it may as well have been, as whatever it cost, it was not at all affordable for you ! 

The air of reality and unreality – the courtroom somehow seems so unreal, sort of like the Sochi Castle, so impressive. Everyone has high expectations when you first see it and yet, the experience in the court room, like the interior of the Castle, somehow leaves you feeling empty. What is justice? And Where is it? What just happened in there? A judge’s decision in a family law case is only the beginning, not the end, of the competition it seems.

There are Rules – no doping, no cheating, everyone in a particular event has to follow the same rules. Well there’s lots of rules for family law litigants – some of them seem a bit repetitive and hard to understand and follow. But if you don’t follow the rules, you have no hope of a resolution of the differences between you. You can be ‘thrown out of court’ if you don’t follow the Rules just like you can be disqualified from an event, for a false start, even though you are just doing your best.

The Olympics are exciting, entertaining, and the Champions are highly regarded. There is a “feel good” atmosphere, if you get a medal. For the rest, disappointment, and perhaps despair.

The big difference now though is that the goals are now changing. The Olympics produce champions – in a civilized and famous way. In Family Law, there can be no champions and you sure don’t want the publicity. You also don’t really want to be an ‘adversary’ of your life long partner – you just want the hurt to go away and be able to move on in some constructive manner, try to recover from the damage of the failed relationship.

So we hope that the times might in fact be ‘a changin’ to quote Bob Dylan for people who are going through the tragedy of a separation – there is a movement afoot in Ontario to divert people from the court system, away  from the competitive environment  – move them to consent dispute resolution services  like mediation or collaborative law; help make the experience more understandable, provide more information not only about the law but about the way in which disputes can be resolved outside of the court system – most importantly to change the culture – to put it into the words of the National Action Committee on Access to Justice in Family Law: “The main theme of this report is the need for culture change and, as much as possible, a further shift away from the adversarial process. Inevitably, some disputes will wind up in front of a judge in a courtroom for adjudication at a hearing or trial. Our object is to reduce their numbers, through providing a wide range of dispute resolution methods, before any family member darkens a courthouse door and even afterwards once they have to go through that door. Inside the courthouse, a unified family court can maintain a range of non-adversarial methods, thanks to the commitment of specialized judges and court staff. ….. At the unified family court intake stage is where the necessary triage and referrals take place. And, for those who enter the court process, at the “front end”, there is lots of room for non-adversarial procedures and work by non-judicial professionals. Family court judges should be reserved for those disputes that require a judge.”

I know that’s a lot of words, but if it can be made to come to pass, we will see a lot fewer damaged families coming out of a separation. Let’s hope that those working hard to make this change will see it come to pass in their lifetimes !!