April 8, 2011
Remarks by Chief Justice Warren K. Winkler
Judicial colleagues, members of the Ottawa Bar, friends.
Thank you for inviting me to join you for this family law program.
In the fall I spoke at your CLE session on civil litigation. The topic of that address was family law and I am back once again to speak to you about this subject.
I hope you don’t think that I have a one-track mind. But if you do, you would not be that far off. It is true that I have, with good reason, been focusing much of my attention on family law.
I have stated before that I believe access to justice to be the greatest challenge facing the legal profession today. I continue to believe that one of the areas of law where this is most profoundly challenged is family law.
After I was appointed Chief Justice of Ontario, I travelled throughout the province, and met with law associations to get feedback on issues that were facing the legal system. The overwhelming theme of the conversations with lawyers who practice litigation is that family law is in a state of crisis.
This state of frustration is shared by the public. Almost everyone knows someone who has been involved in a family law dispute. It is almost inevitable that these stories will be sad from a personal standpoint. But this sadness is invariably exacerbated by experiences of frustration and dissatisfaction with the legal system.
The public is frustrated with the length of time it takes to finalize matrimonial cases and with the complexity of the procedures. They are frustrated with the costs that stem from the delays and the dissipation of family assets from protracted litigation. Finally, they are frustrated with the stress that the court procedure places on the participants in an already highly emotional dispute. The effect that our legal system has on family disputes has been described as throwing gasoline on a fire.
Those who can afford it are increasingly choosing methods of private arbitration to avoid the inefficiency, complexity and inflexibility of the public court system. However, this system of private justice is costly. While some people may have legitimate reasons, which I respect, for choosing private arbitration, they should not be forced to do so because of inadequacies in the traditional court system. My concern is that we are moving towards a two-tiered family justice system.
There is a growing consensus that the current family justice system is in desperate need of repair. In the fall, the Law Commission of Ontario published a paper on its consultation on family law. The title of their paper was “Voices from a Broken Family Justice System.”1 A recent Globe and Mail article summarizes the situation by saying that “the family-law system in this country is a wreck.” 2
Family law cases are among the most lengthy to resolve. Approximately 4 in 10 family law disputes remain unresolved after three years.3 This is most tragic where children are involved. Three years of instability and emotional stress can be catastrophic to a child.
The protracted litigation common in these disputes is unaffordable to middle-income Ontarians. As a result, increasing numbers of family law litigants are unrepresented. They either start out this way or are forced to represent themselves after having run out of funds mid-way through litigation. It has been estimated that more than 50% of family law litigants come to court without legal representation.
In September of 2010 at the Opening of Courts Ceremony in Toronto, I commented on our family justice system. My point was that it is time for change, time for action.
I began my remarks by saying that:
“I question the effectiveness of the ‘slow-and-steady’ approach of fine-tuning and rationalizing the present system. Rather than incremental change, perhaps it is time to consider a more dramatic and pragmatic revision of the manner in which family law services is delivered across Ontario.”
In expressing concerns about the state of our family justice system, my hope was to raise the profile of this issue and begin a dialogue about what tangible steps we can take to make real changes that result in real results for clients.
Thankfully, since I raised these issues they have begun to receive greater attention, with an increased sense of urgency. In the last 6 months there have been several print and broadcast stories on the current crisis in family law. Just two weeks ago, the Globe and Mail ran three stories on this subject in their Saturday Focus section. My hope is that this dialogue will in fact lead to change.
I have had the opportunity to meet with many stakeholders in the system since I began speaking about this issue. I have refined my views as a result of those conversations.
There is a consensus on what is needed. Litigants want a family law process that provides early, fair and decisive intervention. They want more mediation and simpler procedure so they can resolve their cases more quickly and more cheaply. They also want specialized judges.
Experience has shown that a fair and timely resolution of disputes involving family breakdown and families in transition requires up-front attention to three key elements. First, the parties must have early access to information about the subject matter. Second, litigants must have legal representation. Finally, and most significantly, parties must be compelled to provide full and timely disclosure of all relevant financial information.
I remain committed to the proposition that the centrepiece of any family justice system ought to be mediation and that this should be the preferred option in most cases. Mediation has the advantage over a court hearing of being less formal, simpler and thus cheaper.
Moreover, mediation is less adversarial than litigation and therefore better suited to resolving family disputes. Family breakdown where children are involved requires a continuing relationship between the spouses after dissolution of the marriage. Mediation facilitates this because the parties have to work with each other in order to reach a cooperative solution, as opposed to having a judge pronounce the result. It fosters greater ongoing accountability and responsibility because the parties play a role in setting the terms of their future relationship. The recommendations from the Home Court Advantage Summit sponsored by the Ontario Bar Association and others expressed this well:
When children are involved, family members remain financially, emotionally and practically interdependent indefinitely. Adversarial strategies for restructuring the family undermine the cooperation needed after a separation. Cooperative strategies promote constructive post-separation parenting, financial responsibility, and resilience in children.4
The traditional adversarial system works where you are dealing with parties who will never have to deal with each other again, but is lacking where ongoing cooperation is required.
Although my original thinking envisaged a system in which court-based mediation would be mandatory, I have modified my views in this regard. I recognize that mediation is not amenable to every case in the family law context. My recommendation is that we should move towards a system with presumptive mediation. By this I mean that mediation would be the default position to which parties would be steered, unless it was determined that this was not appropriate for them. The litigation track would be for those who, because of circumstances, would be denied the preferred mediation procedure. For example, mediation is not suitable for cases involving abuse or cases where the safety of family members may be at risk. It is also not suitable for cases where there are outstanding issues involving disclosure. Those cases should be relegated to the litigation track.
That said, in the majority of situations, mediation is appropriate. Its usefulness is not limited to disputes that are easily resolved. Difficult cases can be mediated successfully. In choosing which cases should be mediated, we should not be too caught up with chances of success or with success rates. Rather, what ought to determine whether a case is mediated is what is best for the parties. In my view, only in the event that mediation is inappropriate or unsuccessful should access to the court-based litigation process be made available. The traditional court process should be a last resort, because it has been shown to be costly, time-consuming, adversarial and more acrimonious.
I am in favour of court-based mediation. However, if the parties come to court having used the collaborative process or some other form of private mediation, that should, in my view, constitute mediation for the purposes of meeting this requirement. If mediation in that context has been unsuccessful, those cases should go directly and promptly to trial without any court-based mediation.
By court-based mediation; I am referring to a process of mediation where the court is positioned to deliver mediation services. This does not necessarily mean that only judges can be mediators. I recognize that there is a wide variety of professionals who can deliver mediation services which could include mental health professionals, judges, masters, pro-bono lawyers, and others with accredited family mediation training. However, these services should be offered by the court and the court should direct parties to the appropriate services.
Since the process that I foresee has different tracks, there should be a triage officer or gatekeeper at the outset of the process who directs cases to the appropriate track. The triage officer should be a judge or other judicial officer. The key is that this person must be empowered to make necessary decisions at the outset to ensure that the case is correctly routed and proceeds expeditiously, fairly and in the best interests of the parties. I envision the triage officer as a case management judge who could set timetables and, in certain circumstances, trial dates. It is this triage judge that would determine whether a case should be sent to litigation or mediation.
If a triage judge refers a case to the litigation track, one judge should maintain primary responsibility for the case. Litigants want to deal with the same judge each time they come to court. It has been noted that we should be striving towards a principle of “one family, one judge.” This would assist with prompt disclosure. It is more difficult for a party to delay disclosure, when that person has to face the same judge every time.
If reformulation of family law adds some cost to the administration of justice, I believe it is a legitimate trade-off in order to save costs for the parties. Moreover, it occurs to me that a portion of any increased cost could come from a realignment of existing resources and increases in efficiency.
I have some experience with this kind of reform. In 2004, the Superior Court in the Toronto Region was on the verge of a crisis relating to lengthy delays and a lack of capacity to handle upcoming trials. To resolve these problems, wholesale systemic changes were implemented. These reforms resulted in a palpable difference for litigants. Delays were reduced. The number of court appearances was reduced. Hence the cost to litigants was reduced. There was also an improvement in the effectiveness of mediation. Settlement rates increased dramatically because trials were more imminent. As a result of all of the above, judicial resources were freed up and allocated to other areas of need. The reduced time and expense of litigation, coupled with the earlier resolution rates, meant enhanced access to justice. It also meant that litigants were able to move more quickly beyond their disputes and get on with their lives.
The lessons learned from that experience indicate that it is not fanciful to say that our current family justice system already has a sizeable portion of resources to accommodate the much needed reforms being suggesting. These resources can be freed up if our current family justice system is made more efficient. As just one example, judges are currently tasked with such time-consuming mechanical or administrative duties as calculating support payments or shepherding consent divorces through the system. It may be more cost-efficient to have these duties performed by non-judicial officers.
Increased efficiencies would also be obtained by assigning a single specialized judge to those cases that do require litigation. Continuity would allow one judge to become familiar with individual disputes, the parties, and the timeline and would, undoubtedly assist in resolving cases more expeditiously.
This brings me to my final point. We currently have 17 Unified Family Court (the “UFC”) sites in Ontario. Where the UFC exists it hears all family law matters regardless of whether they are under federal or provincial jurisdiction. In all other locations across the province, family law matters are divided between the Ontario Court of Justice and the Superior Court of Justice. I think the time has come for the UFC to be extended to the remainder of the province. The UFC was started in Ontario in 1977. It has expanded over the years, but still does not cover the entire province. There is a general consensus that it provides increased efficiencies. One family should not have to go back and forth between two different courts to resolve their family law issues. It over-complicates matters and increases expense. I recognize that the extension of the UFC requires cooperation between the federal and provincial governments. The Attorney General of Ontario has publicly stated that he is in favour of an expansion of the UFC. It is time that the two levels of government come together and finish what was started in 1977. This will create efficiencies which will in the long-term render the re-alignment of resources outlined above more readily achievable. It is integral to the overhaul of the family justice system that I envisage.
While there may be additional costs to the court system if the reforms proposed are brought in, I suggest that these changes will in turn lead to greater systemic efficiency and free up money. There can be significant savings to both individual litigants and to the justice system if we:
I have stated before that I am proposing reform to family law in the interest of improving access to justice. We currently have a process that is too expensive and inefficient. The court system can be improved by providing a streamlined process with presumptive mediation in a unified court. Cases that require litigation should be assigned to a single specialized judge that can see them through to the end. I believe these reforms could substantially improve the family court system and take us a long way towards addressing the access to justice issues faced in this area.