The Canadian Bar Association

Unified family court system needed

Recommendations that promote a unified family court system with simplified rules stand out as most pressing in a series of proposed changes included in a recent Family Justice Working Group report, says Oakville family lawyer and mediator Cathryn Paul.

“I am encouraged that the issue of access to family justice is being given serious contemplation and that concrete recommendations for change have been advanced,” says Paul.

The report, titled Meaningful Change for Family Justice: Beyond Wise Words, was released last month and lists more than 30 recommendations that aim to increase access to the family justice system.

“I see the most crucial recommendations to be recommendations 19-27, which promote a unified family court system, with simplified rules and forms and a specialized bench of judges with training in dispute resolution and the impact of separation and divorce on children,” says Paul.

“Although the hope is that most families will resolve their issues through non-adversarial means, including mediation and collaborative law, the core of the family justice system is the resort to courts. That has to be fair and accessible to all.”

Paul says, “Having a strong court system influences what happens in other dispute resolution methods. For example, if the barriers to enter the court system are high, a party may choose a sub-optimal negotiated result, rather than pursuing the matter to the courts. This perpetuates power imbalances.”

The current family court system, Paul says, is cumbersome and inefficient.

“It is not designed to deal with the complexities of family dynamics and the long-reaching outcomes for parties and their children,” she says. “It is simply an extension of the civil justice system. This is inappropriate given the unique nature of family law, in terms of the history of the parties and the issues involved. In the current family court system, the barriers for entry are huge, and the stakes are very high. Parties need to be able to access justice quickly, efficiently, and fairly.”

In Ontario, jurisdictions that have two courts dealing with family matters – the Ontario Court of Justice and the Superior Court of Justice - often times duplicate efforts and waste resources, says Paul.

“Lawyers who practise family law and judges who hear family cases should have specialized training in the interpersonal dynamics involved,” she says. “Too many times we see judges who would prefer not to hear family cases, having family cases as part of their caseload. Their lack of enthusiasm for the topic is apparent, and not beneficial to parties.

“The idea of case management, having one judge hear most of the steps in a particular case, is critical. The judge gets to know the personalities involved, and is in a better position to help the family move forward. Much of a family judge’s role is in helping parties come to resolution. If parties feel that a judge knows and understands their position, and is recommending a particular resolution, that is very powerful.”

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