Ontario is now committed to reforming the family court system in Ontario. To make that happen the government intends to change the attitude of all participants. Those of us who deal with family breakdowns have long understood that the adversarial system is really not the best system to deal with family breakdown. That system often causes more harm by giving the conflict legitimacy and creating the sense that there are winners and losers when in fact there are no winners when the family unit ends.
Last year, the Attorney General for Ontario, Chris Bentley, announced a new process for resolving family law disputes. The process would be based on four ‘pillars’:
1. Providing early information for separating spouses and children;
2. Assessing parties and directing them to appropriate and proportional services using a triage approach;
3. Facilitating greater access to legal information, advice and alternative dispute resolution processes; and
4. Developing a streamlined and focused family court process.
Recently, the Attorney General announced another step toward attaining that goal. In relation to step 1, he announced that he would make province wide the Mandatory Information Program (MIP) that has been used with such success in Toronto. Before any separated couple can go to court, each party will have to attend an MIP. The MIP will focus on the systems available to resolve family law disputes. It will educate the litigating parties about the damage that they can do to each other by approaching their dispute with a ‘win lose’ mindset. The MIP is starting in April 2011 and will expand over the summer to all Ontario courts so that by the end of 2011, nobody will be able to go to family court until they have attended an MIP.
There is no doubt that when a marriage breaks down, one or both parties have very strong emotions – intense hurt, intense anger, which can translate quickly into a strong desire for revenge. No doubt fear is a strong influence on these emotions. How can I manage financially? What did I do to cause this? How could I be so wrong about my spouse? What will happen to our children? These are but a few of the intense questions that influence the actions of separated partners, partners who fully intended to live out their marriage vows and don’t understand fully where things went wrong.
People don’t know how to function when their world begins to fall apart around them. This is completely understandable. Often they believe that the only hope is to hire a strong ‘attack dog’ type lawyer to protect them and get the most from their partner. Some lawyers actually believe they do their clients a great service by being that ‘attack dog’. However, the good family lawyer will try his or her best to fully inform their client about the systems available including mediation, collaborative law, arbitration, and court. The good lawyer will tell their client how much each of these systems is likely to cost. More importantly, they will tell their client what it is like to go through these various systems of dispute resolution. When the client is fully informed, they often understand that the last place they want to be is in court.
It is crucial for people going through separation to understand what the various dispute resolution services are able to do for them to assist them in moving on to a place where they can carry on, after divorce. Often that service is not court based.
Sadly, not all lawyers fully inform their clients at the outset of the case. Sometimes, as well, the client, who often is in a complete state of emotional shock, is not able to hear what the good lawyer is telling them about the benefits of mediation and arbitration. All they can think of is that they need a Judge to tell the spouse who has hurt them so badly that he or she is a very bad person and should be punished. They don’t, therefore, give proper informed instruction to their lawyer.
The MIP should be designed to assist the people who have been seriously harmed by their separation. It should alert them to their need for counselling and professional assistance from mental health professionals. It should explain the different ways of approaching the resolution of the parenting and financial issues that arise when the family breaks down. It should focus on the need to maintain a relationship between parents for the sake of their children who are most affected by their separation. It should tell them that a long adversarial court battle is the last thing that either of them need – that the costs are too great and can be ruinous, not only financially, but emotionally and psychologically to both parties and their children. It should give them education about the best method of resolving their particular dispute.
So, thanks to this Government initiative, the movement for change is finally on – a movement that was spawned by many professionals who have dedicated themselves for so many years to assisting families going through the most common tragedy of our modern lives – separation and divorce. Professionals in this area have known for many many years that the adversarial system can cause more harm and that it really should be the rare case where separated spouses need a third party – a Judge to decide their fate when their marriage or partnership ends.
For those who want to read about the work these professionals have done, download this PDF.