The Ontario government is moving to improve family law in the province. Will it be enough?
In May, 2009, *The Mark* published [my column](http://www.themarknews.com/articles/153-the-flaw-in-family-law) entitled, “The Flaw in Family Law.” It was a very blunt assessment of the devastating impact, both financial and emotional, that our family law system has on Canadian families and, in particular, children. So blunt was it that colleagues who previewed the article cautioned me not to publish it. But it was and continues to be the truth. Day in and day out, our justice system drains the spirit, energy, and life savings out of tens of thousands of Canadians who are going through separation and divorce. In my view, our adversarial approach to resolving family law disputes has been akin to pouring gasoline on a fire.
Instead, I advocated tearing down the current system and implementing a Family Relations Tribunal not unlike the labour relations tribunals that business and labour use in many provinces. At such tribunals they resolve disputes knowing that tomorrow they must work together again. At a Family Relations Tribunal, a “triage approach” would get families the help they actually need quickly. They would receive legal information about their rights and responsibilities, access to social workers, financial planning assistance, and rapid police protection if there were safety concerns. With this multidisciplinary approach, separating parents could keep their children out of the litigation crossfire and use scarce resources to separate wisely and peacefully.
At the conclusion of my article, I challenged anyone who disagreed with my assessment of the family law system or my suggestion for a Family Relations Tribunal to a debate. Not surprisingly, there were no takers.
*Toronto Life* magazine considered the idea of a triage fast track approach interesting enough to include it in their December 2009 issue [“City of Ideas: 25 World Changing Ideas from the Smartest Torontonians.”]( http://www.torontolife.com/features/25-ideas-are-changing-world/) Reaction to the article was positive, but would anyone in power run with it?
On December 17, 2009, Ontario’s Attorney General Chris Bentley announced that the province was moving to strengthen and improve access to justice by making the family courts easier to use, more focused, and more affordable. A thin press release noted that some of the improvements to family justice would include providing more information to families up front about the steps they need to take to protect their children when relationships break down, facilitating community referrals to better support families in reaching resolutions, and improving access to legal advice, as well as less adversarial means of resolving issues. This would mean increased use of more peaceful and humane dispute resolution, such as mediation and collaborative family law techniques. Last and not least, the Attorney General announced that he wished to streamline and simplify the steps involved for those cases that must go to court. Alas, still a courtroom.
Are these proposed reforms enough? No. But it is a start. The reforms will be rolled out this spring in two courts – in Brampton and Milton – and then, depending on their success, the initiatives will be spread to other jurisdictions in Ontario. So, we are a long way from seeing any immediate benefits. Cases currently before the courts will not be affected and those families will unfortunately continue to languish in a system that is still too slow, too expensive and too insensitive to deal with most disputes.
Recent statistics tell us that about 38 per cent of Canadian marriages will end in divorce. [In my view](http://www.themarknews.com/articles/806-til-death-or-divorce-do-us-part), for there to be any meaningful change in the way in which we help those families (not to mention the very high number of common law relationships which break down), we need to take these matters completely out of the courts. We need to put families in the hands of a more humane and responsive set of professionals that would include mediators, arbitrators, social workers, financial planners, the police, and, for a small number of cases, access to judges for interpretation of rare new legal points.
Do we really need highly skilled and highly paid judges deciding whether a couple has been separated for a year in order to qualify for a divorce? Do we need them to decide whether a parent’s access weekend includes the Monday on the long weekend? What about the quantum of child support? These are all questions that could be resolved more quickly and more affordably in a Family Relations Tribunal.
The improvements announced by Attorney General Bentley on behalf of the McGuinty government are small steps in the right direction, but the next big step should be down a path that leads these disputes away from a courtroom entirely.