Apr 24, 2013

The Worst Kept Legal Secret of the Decade: Family Law Needs A Complete Overhaul

Restructuring is what family law needs, says the as-of-yet unreleased report from the Cromwell committee to Chief Justice McLachlin of the Supreme Court of Canada. No kidding. Haven’t family lawyers and parties been saying exactly that forever? I know I have been…

The Globe and Mail obtained a copy of the Report of the Action Committee on Access to Justice in Civil and Family Matters expected to be released this month. Critical of the adversarial system, we are told that the report suggests a total restructuring of the family courts in order to shift the focus to mediation and settlement. The litigation process should be streamlined and used only as a last resort. Family lawyers and, more importantly, family law litigants have known for years that the system is broken. The report makes a series of recommendations urging an overhaul of the current system, including:

The creation of unified family courts across the country, thereby eliminating the problems inherent in a system with both provincial and federal systems; The imposition of severe sanctions in the form of heavy cost awards against parties who thwart settlement or behave badly in the litigation; Stressing the importance and value of family law in law school curricula, in order to recognize the fact that family law disputes affect more Canadians than any other single area of law and, hence, lawyers should be trained to handle these cases; Increased legal aid funding for family cases; and Mandatory mediation.

I strongly support what it appears the recommendations will be and await the release of the full report. From all that I have read so far, however, it appears that the report is missing a recommendation that I consider essential to a reduction in the need for access to the family courts: the education of the general public. Let me explain.

I strongly support what it appears the recommendations will be and await the release of the full report. From all that I have read so far, however, it appears that the report is missing a recommendation that I consider essential to a reduction in the need for access to the family courts: the education of the general public. Let me explain.

People butt up against the family law system most often at a time of crisis. Marriages or relationships are ending, emotions are high and much of the damage has already been done. That is why the Family Information Sessions are too little too late. These are two hour sessions mandated by the Court where a lawyer and a social worker present information about the effects of separation and divorce on parties and children, alternatives to litigation and court process. Unfortunately, parties are only required to attend the Family Information Sessions when litigation is started. By that time, most of the facts that will frame the outcome of the case have already been set. For example, married spouses in Ontario are required to equalize their property on marriage breakdown. Cohabiting spouses are not. Hence, whether or not a couple married all those years ago has a significant financial impact. As another example, a party may have, by steps taken or omitted during the relationship, unwittingly established a child or spousal support obligation.

I do not like the idea of law applying to people without their knowing it. But in family law, this happens all the time. Couples marry, or don’t, without knowing what the future impact of that decision could be, which I believe is dangerous. Family law is not intuitive. It impacts in ways that are unexpected. This leads to people who feel ill-used and unfairly treated by the system. These people are more likely to challenge the results of the laws they consider unjust and, hence, litigate their family law matters. Even if they choose not to litigate, uninformed parties take longer to resolve their matters. They must first get over feeling duped and then learn how the law applies to them before they can take any steps towards settlement.

Education is the only answer to this problem. Before a couple gets married, it is imperative that they both know how the law would impact them upon divorce. Family Information Sessions are a great idea but, in my mind, are timed wrong. People need to attend such sessions before they marry, not when they are ending a relationship. Parties require a licence to marry. Why not mandate that, before a licence is granted, the couple must attend a program similar to the Family Information Session, where information about the law can be shared. Couples who choose not to marry would not get the benefit of information this way, so we would need alternate dissemination options but it would, at least, educate the marrying population. Get them when they need something from us, I say. We have a captive audience – let’s educate them.

Photography by Tian Jiang

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