County of Carleton Law Association – Civil Litigation CLE Program

Montebello, Quebec-November 19, 2010

Remarks by Chief Justice Warren K. Winkler

Judicial colleagues, members of the Ottawa Bar, friends.

Let me begin by congratulating you on the 30th anniversary of your CLE programme. Thank you for inviting me to join you at this beautiful venue and for your generous hospitality.

My topic this afternoon is one I have spoken about frequently and from the heart. Access to justice is the single most important issue facing the legal profession in Canada. It continually tests those responsible for the administration of justice across the country. Of even more serious concern is the fact that the area of law where this problem is most pronounced is family law.

Almost everyone you meet these days has a story about a family member, friend or acquaintance that is going through a family dispute. Their story is predictably sad from a personal standpoint, but within the present context – the adequacy of our legal system – their experiences invariably tell of frustration and dissatisfaction.

Over the past three years I have travelled throughout the province of Ontario, east to west, north to south, meeting with law associations to discuss our legal system – both the good points and the not so good points. The resounding theme of the conversations with lawyers who practice litigation has been that family law is in a state of crisis.

One is left with the firm impression that the public we serve is becoming more and more frustrated. They are 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 procedural steps and with 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.

Adding to these problems is the increase in the number of self-represented litigants who have run out of funds for legal services. The statistics support the seriousness of this concern. Each year, almost 90,000 new family law proceedings are commenced province-wide. Family disputes account for approximately one in five cases in Ontario’s courts and lead to more than 300,000 court appearances each year. It is estimated that more than 50% of family law litigants come to court without legal representation.

We get a picture of a legal system that is burdened with a high volume of emotionally charged, often acrimonious family disputes that require multiple appearances and take a lot of court time to resolve. We see a system in disarray – one that is beyond tinkering and that needs to be rebuilt from the bottom up using new concepts and fresh ideas. In short, we see a need for fundamental change.

In September of this year at the Opening of Courts Ceremony in Toronto, I commented on our family justice system. For those of you who did not attend the Toronto ceremony or who have yet to track down my speech on the Court of Appeal website, there is no cause to fret. I bring my message to you directly.

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. As I have said, no topic relating to the justice system has a more direct bearing on the lives of Ontarians than improving our approach to resolving family breakdown.

Since I delivered my remarks two months ago, a lot has happened. Much ink has been spilt, much blogging has occurred, and even the air waves have been filled with discourse on this issue.

“What is the solution?” I have asked the judges, lawyers, mediators and users of the system. The response is firm and clear. Litigants want a family law process that provides early 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 timely and fair 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.

In addition, I propose that the centrepiece of any family justice system ought to be mediation. Mediation has the advantage over a court hearing of being less formal, simpler and thus cheaper, and non-adversarial. It has the potential to defuse some of the high emotion of family breakdown. In addition, the parties have a hand in fashioning their own solution. What parent would willingly abdicate to a third party such important life decisions as those involving their child?

Although I envisage a system in which court-based mediation would be mandatory, I recognize that it is not amenable to every case. For example, mediation is not suitable for cases involving abuse, where the safety of family members may be at risk. It is also not suitable for cases involving issues of disclosure.

That said, in the vast majority of situations, mediation is appropriate. And 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 unsuccessful (or determined by the court to be inappropriate) would access to the court process be made available to litigants. The court process should be a last resort, because it has been shown to be costly, time-consuming, adversarial and sometimes acrimonious.

Not only do I believe that mediation should be mandated in most family law matters, but I also support the concept of court-based mediation. While this phrase may mean different things to different people, to me it means that our courts should be positioned to deliver timely and professional mediation services in family law matters at no cost to litigants.

Who would act as a mediator in family law court-based mediations? It seems to me that there is a range of available options: mental health professionals, judges, masters, pro-bono lawyers, and others with accredited family mediation training are all possibilities.

Because the process that I foresee has different tracks, there should be a triage officer or gatekeeper at the outset of the litigation who directs cases to the appropriate track. The triage officer should be a judge or other judicial officer. The key, however, is that they must be empowered to make necessary decisions at the outset that are in the best interests of the parties, to ensure that the case is correctly routed and proceeds expeditiously and fairly.

For example, two matters that should be dealt with as early as possible are child or spousal support and child custody. To inform decisions on these issues, a social aid organization must do a sharp and focused assessment of a child’s needs. Those needs have to be matched to resources available in the community.

Assuming that we can agree on how best to restructure our imperfect family justice system, how will we fund this transformation? As with any solution to a complex problem, the devil is in the details. It is impossible to calculate the cost of changes of the magnitude that I am suggesting, without knowing the precise details of the new scheme for family law dispute resolution.

If a 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. Nevertheless, it seems to me that a portion of any increased cost could come from a realignment of existing resources. In other words, to put a more positive spin on it, the cost of much needed change might not be as great as one might expect.

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 the above, judicial resources were freed up to be 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 tell us 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 I am 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.

Where judicial resources are deployed, there needs to be continuity so that the same judge can become familiar with individual disputes, the parties, and the timeline. This will provide added efficiencies.

So while there may be additional costs to the court system if the reforms I propose 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:

  • provide more information to litigants up-front;
  • ensure early and complete disclosure;
  • resolve more cases earlier on through mediation;
  • transfer some administrative duties currently performed by judges to non-judicial officers in order to free up court time; and
  • engage the traditional court process only when necessary.

I conclude these remarks by stressing that the reform I propose is an access to justice initiative. We must ensure that parties to a family law dispute have early access to information, legal representation, and the benefit of full and timely disclosure. Combine this with a streamlined process in which mediation is the centrepiece rather than a mere stop on the road to the courtroom, and we will be well on track to redressing the access issue. Our task must be to assist those facing family breakdown in reaching an affordable resolution of their dispute and to alleviate, rather than worsen, their emotional stress.

Thank you.

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