Thomas Dart, Partner, Family Law

The Action Committee on Access to Justice in Civil and Family Matters has published its report on Family Justice.  This committee was convened at the invitation of the Chief Justice of Canada, the Honorable Beverly McLachlan and is chaired by Supreme Court Justice Thomas Cromwell.  It addresses the concern of access to justice by families who suffer from relationship breakdown.

The full report can be read on line at

The report acknowledges the input from many previous reports including one commissioned by the Province of Ontario and prepared by Alf Mamo, Peter G. Jaffe and Debbie G. Chiodo entitled Recapturing the Vision of the Family Court (2007) and one from a collaborative effort of many professionals and organizations including the Ontario Bar Association, Family Law Section, entitled Creating a Family Process that Works: Final Report and Recommendations from the Home Court Advantage Summit (2009)

As this report notes,  “Family Law has a very broad reach. There is probably no single area of law that touches as many people. The quality or adequacy of a family’s encounter with the justice system can shape their lives and influence their well-being for the long term.” (from paragraph 13 Conclusion).

Yet politicians at both the Provincial and Federal level continue to ignore and thereby under fund the family justice system. They have the repetitious recommendations of numerous experts. In other words, the answers are there for implementation. All that is needed is the political will  – which for some inexplicable reason continues to be focused primarily on criminal law and imprisonment of repeat offenders, even though statistics tell us that crime rates are actually dropping.

Relationship breakdown is not dropping, in fact it continues to increase and continues to impact many other government agencies as a result. When will the governments find the funding and the resources to assist families and particularly children who are experiencing this kind of family trauma?  We know that children from divorced and separated families are at risk unless the family breakdown is  handled in a manner which reduces conflict between their parents. Yet we continue to place emphasis on adversarial court based solutions as the best service to these families.

Courts are overburdened. Not enough judges, administration and court staff are in place to satisfy the demand. In some locations in our Province it can take four to five years to get a case to trial. Needless to say the financial cost and emotional stress placed upon a family over this course of time is devastating.  Judges, court staff and government administration are performing heroic tasks in trying to deal with the tremendous volume of cases flowing through the court system.  

As so many recommendations have proposed – the answers to these problems begin with the premise that family breakdown is not just a “legal issue”.  Why should people who are suffering from the emotional stress of a marriage breakdown not first be given the assistance of non-legal professionals to handle this type of stress? Lawyers aren’t social workers. Good lawyers recognize this and try to divert their clients to the counselling they need  before they can fully contend with legal issues.

Many people can be assisted with non-court based solutions for the problems they are facing. Mediation, collaborative law, arbitration are all process that can be tailor made to the needs of the family. These process inform and educate the parties about the many facets of their relationship breakdown.  The report recommends a ‘triage’ approach, that is streaming of people to the appropriate service.

As the report notes, simplifying the law can also bring a huge benefit to many people. There are many complicated issues arising from the application of our current law. Complexity leads to uncertainty and to more financial loss.  Creative legislative solutions to this complexity should at least be considered.

Insofar as the court system is concerned, the report once again repeats the need for One Unified Family Court with specialized judges who are devoted to managing and adjudicating family law matters. One case to one judge – a “vertical” system of case management as opposed to the current “horizontal” position. That is one judge manages the case from beginning to end. This provides consistency in application, less uncertainty about the result and less cost.

 It is difficult to understand, in this age of complexity, why there is so much resistance to having a specialized court. Many people  who enter the justice system simply expect that the judge who adjudicates their matter will be a specialist in their area of law. They are often very surprised to learn that this is not necessarily the case, through no fault of the judge. The reasons of course have to do with the underfunding of the justice system generally.  Judges can’t be specialized because there are simply not enough of them appointed to handle just family law cases and judges who do not have a strong familiarity with family law cases have to step in to assist with the case load.  Senior Judges who are in charge of the very difficult task of creating court schedules have no choice at present but to manage the load as best they can with the people they have assigned to them.

There is already in Ontario a good model for a specialized court. The Ontario Court of Justice, criminal and family branch are essentially specialized courts. In the areas of the Province where they are located, each has demonstrated how a specialized system can enhance the court based justice system.  However, even these courts are underfunded and have difficulty handling the tremendous volume of cases facing them. Nevertheless, these courts do handle them and handle them as well and as efficiently as they can with their limited resources.

The report has many other very good recommendations, so many that it is impossible to refer to them all in the brief time I have to talk about it. Please read the report. Please begin the lobby of your local politician to make change. Unless we speak loudly and often, we won’t be heard. The answers are their action. Federal and Provincial co-operation is  vital – can we make that happen? I think we can – we need to, for the sake of the many families and children who are so dramatically affected by a relationship breakdown.