Focus on Family Law

CHAPTER 16


16.1 The Consultation Process:

During the Consultation stage of the Review, a substantial number of the oral and written presentations concerned proceedings in the Family Law area. The Review was told frequently about the tragic consequences of the high cost -- monetarily and emotionally -- of family law proceedings; about the numerous motions; about the often poisonous nature of lengthy affidavit materials; about the uncertainty of hearing dates; and about the lack of a province-wide specialized Family Court.

Delay:

Many people described the process in Family Law as one of "hurry up and wait".

Because of the delays in getting to trial, the significance of pre-trial orders increases, particularly in matters relating to interim custody, interim access and interim support. Judges are cautious about making such orders on incomplete or urgently prepared materials or where there has been no opportunity for response. This leads to the making of "interim interim" orders i.e., orders which are only effective until another court date in the future. The result: further appearances, additional emotional strain, and more expense.

The number of motions in Family Law has increased by about 150% in the last five years.

The failure of parties to provide full and complete disclosure, and the failure of the courts to enforce the principle of full disclosure, were observed to be serious contributing factors to the delay. Another factor cited was over-scheduling by lawyers which has produced court scheduling problems and further delays.

It should be noted, however, that in some cases delays can have a beneficial effect in family law proceedings. Members of families are often pulled by the emotional crisis of their relationship breakdown and all too frequently attempt to play out these underlying themes of their personal problems in the courts. They should be discouraged from doing this, rather than encouraged to do so through the exacerbating tensions of an overly adversarial, technical and costly process -- a process which, in the end, may be of little ultimate benefit to the parties.

Cost:

By far the most striking problem portrayed by members of the public is the very high cost of Family Law proceedings. Many people believe that Family Court is only for the very rich or the legally aided. Too many motions and too much paperwork involved in the voluminous affidavit material have contributed to this high cost.

Many judges and lawyers were quick to point out that the statutes affecting Family Law have had more amendments than in any other area of the law in recent years resulting in a dramatic increase in litigation and inconsistency and therefore cost.

Cost sanctions, on the other hand, are rarely imposed in family court proceedings and most people believed that they should be. Finally, a number of people suggested imposing disincentives in the system for setting down lengthy matters, or at least fees commensurate with the time needed to try a matter.

The scheduling of trials in family cases often leads to delay. In some jurisdictions, consecutive trials days are not available and a trial can be broken up over a number of months, or even in some cases, we were told, over a year. Lawyers reported that the broad range of judicial expertise in the Family Law leads to ineffective pretrials and the tendency to continue the case and shop for a trial judge.

Process:

Another problem described in the consultation process was the inconsistency and lack of predictability in the Family Law process. This has led to a sense of unfairness about the system. It also has the effect of reducing the possibilities for early resolution, as the parties and their lawyers continue to search for the judge who, they hope, will make a favourable decision.

Many courts operate under different formal and informal practice directions. In some instances these practice directions have been issued by a local bench without sufficient consultation. The result is an increase in paperwork and in costs to clients and lawyers, and an impact on the work of the court staff. Counsel who conduct their practices close to the borders of more than one jurisdiction are frustrated by these varying practice directions and the manner in which they are communicated or not communicated.

It became clear that very few jurisdictions have maintained local or regional Family Law committees which, among other issues, could be useful in anticipating the impact and benefit of proposed practice directions.

As indicated previously, motions in family law have increased dramatically. Some contents of affidavits attached to motion material were reported by members of the public to be damaging forever. We were told on more that one occasion that perjury in these affidavits is rampant. Where there is little control imposed over the process, lawyers feel compelled to draft lengthy and all encompassing affidavits to ensure procedural advantages for the client and to avoid future liability. Concern and frustration were expressed about the number of allegations made in affidavits that were not capable of being substantiated in any way. Whether that is true or not, it is clearly a perception that exists, as does the perception that such perjury goes unpunished. Many clients wish to have their entire story put before the court at the earliest opportunity; sometimes it is felt necessary to tell the whole story in response to opposing material.

The general method of scheduling a large number of motions for the same date and time was said to lead to confusion, to increased cost, and to the fact that many matters are not reached and need to be adjourned. There is a tremendous waste in this process.

Lawyers were criticized for their drafting of lengthy, damaging, and sometimes unsupportable affidavit material. Clients in family law proceedings expressed concerns that their lawyers did not adequately explain to them the court process, the duty for ongoing disclosure and the alternatives to court. Concerns were expressed that recessionary times have led to lawyers who normally practice in other areas of the law taking on family cases when they are not sufficiently experienced or qualified to do so. Often their approach is more adversarial and technical than experienced family lawyers.

There was also concern expressed that some judges in the General Division do not like hearing family law cases and that this dislike for the subject was communicated to litigants along with inappropriate and personal comments. Judges in family law cases need training in alternate dispute resolution techniques and in pre-trial management. In some cases, people felt that judges wanted to avoid making tough decisions so they adjourned the case and advised the parties to settle it themselves. Many judges were seen as reluctant and/or without the resources to enforce timeliness in the process and children's issues are not seen as a priority over property and money.

The isolation and the constant stress of dealing with family issues was seen as a contributing factor to inconsistency and burnout among judges specializing in the family law area.

The entire process in dealing with family law cases before the court was criticized for its delays and adversarial focus. There is a tremendous need for case management with local and case by case flexibility. In particular, parties want to be involved in the process and not excluded from meetings between lawyers and judges. All too frequently options other than court are not considered.

Resources:

There was unanimous support for providing resources in a manner that would be complementary to the court process. These resources could include supervised access, mediation, assessments, and different models of counselling. It was suggested to the Review by lawyers, court staff, and judges that these resources should be connected to the court system to ensure accessibility and accountability.

Education:

The issue of education for the public, the bar, the bench, and administrative staff was repeatedly stressed.

A review of school curriculum provided by the Ministry of Education indicates that very little education is provided in schools with respect to the roles and responsibilities in relationships, upon separation, and towards children. Locally, it is difficult to identify available resources which might provide a reasonable alternative to the court process or to assist parties through the court process. It was suggested that registration of births and marriages should automatically lead to distribution of information about these rights and responsibilities. Professionals involved in the family court system need education in case management, alternate dispute resolution skills, and in their attitudes towards family law and family law clients.

Family Support Plan:

Throughout the consultation process, many complaints were made regarding the inaccessibility and inaccuracy of the Family Support Plan (the "FSP"). Some jurisdictions report inconsistencies in support orders. The perceived ineffectiveness of FSP exacerbates the difficulties in the ongoing conflicts between the parties or revives conflicts that were considered resolved.

Legal Aid:

Legal Aid was criticized for time-consuming and costly delays in issuing certificates and for funding frivolous actions. The introduction of settlement conferences being conducted by local legal aid directors was seen as very positive because it fills the gap in the resolution focus of the system but, because Legal Aid is funding the litigation of one or both sides in the conflict, it may be perceived as a conflict of interest. It was suggested that lawyers be able to obtain legal aid certificates in family law proceedings only if they have participated in specialized training. It was also suggested that certificates be withdrawn for clients who do not comply with disclosure and other timelines set by the court.

Northern Ontario:

Northern Ontario has unique and significant problems in the area of family law.

The inadequacy of facilities was seen as an aggravating factor to what are already conflict-centred family proceedings. Lack of meeting rooms produces a demeaning environment for the public who must gather together in small hallways with their lawyers, in some cases in close proximity to their alleged abusers.

Because of the tremendous distances that must be travelled in the North, and because of limited resources, the amount of court time is reduced. This leads to lengthy adjournments. Frequently, it leads to trials being spread over many months. These difficulties greatly contribute to the cost of family law proceedings, as well as to the perception of a lack of access to justice in the north, generally.

16.2 The Proposal: A Resolution Focused Process for Family Law

The Family Law Group, which participated in our deliberations and which is referred to in Chapter 5 reviewed the responses from the bench, public, bar, and courts administration and endeavoured to devise a constructive series of suggestions. These suggestions were then translated into a proposal for a new process. The new process for family law matters is predicated on informed choice and predictability for the litigants. It combines the desirability of early education and advance consideration of costs and alternate dispute resolution with court information centres, a streamlined application form, and all of the features of case flow management.

  • Early Education:

    Early education in schools across the province, combined with information centres in libraries, public settings, and courthouses should be available to inform people about their rights and responsibilities in relationships and towards their children. This information could also automatically be mailed following birth, marriage and adoption registrations.

    These same information centres should also provide information about resources when relationships break down. The location and cost of resources could be given. Except for consent orders, court proceedings would be viewed as a last resort or for use in exceptional circumstances.

  • Early Screening:

    In each courthouse, an information service should be available to outline the details about court proceedings - what is required and what can be expected. It is hoped that information about local family law lawyers and alternate dispute resolution resources would also be available, stressing the value of the client and his or her needs. For cases involving children, information about the impact of parental separation and court proceedings would be available. Precedents for those who choose to represent themselves would be available.

    We recommend that some of this information be contained in a video that could also be purchased by lawyers and community resources. Viewing of this video would become a mandatory pre-condition to entering the Family Law court process, with exceptions for emergency applications.

    RECOMMENDATION

    We recommend that an information services video be prepared with respect to family law matters for distribution through community resource centres, shelters, legal aid clinics, the courts and law offices. We recommend that, except in emergency situations, it be mandatory for parties contemplating family law litigation to view the video prior to instituting court process.

  • Alternate Dispute Resolution Attempts:

    We propose changes to the original Notice of Application form used to start a family law proceeding. We propose that it includes a section in which the litigant will be asked to describe previous attempts to use alternative dispute resolution techniques, if these have been employed, or, if not, to explain why they are not appropriate. The litigant will also be asked to confirm that he or she has reviewed the video material described above or, in emergency circumstances, to commit to viewing the material within a reasonable timeframe.

  • Early Judicial Intervention:

    Upon filing, the Application will be assigned to a case management judge and a return date set for approximately two weeks after the deadline for filing a Response. The Response form is to contain similar sections to those indicated above in the Application.

    Part of the Application form is to include a sworn statement which will briefly outline the essential facts. An abbreviated financial statement, including all applicable financial information is to be attached.

    Orders for unopposed matters will be made on the first return date, in a summary fashion i.e. without, necessarily, the full formalities of the usual process.

    Early judicial intervention is planned to take place in most cases before the first motion. In this process, the parties and their counsel will both meet with the judge to determine the most efficient strategy for meeting the needs of each particular case.

  • A Streamlined Process

    At the first session with the assigned judge, an overall objective case management regime will be imposed but individual case timelines will be set for full disclosure and the completion of any necessary assessments, evaluations, and appointments of counsel for children. At this early session, the issues will be narrowed, interim orders can be made, and if necessary a date and time set for any contested interim motions.

    If a motion is to be scheduled, the timing for exchange of material and the issues to be dealt with in the material will be addressed in this first session. The Review recommends that consideration be given to developing a standard form of affidavit that would focus clients and their counsel on the relevant facts. A comprehensive examination of the costs of the case and the costs to be fixed at any interim stage will be discussed. Offers to settle will be encouraged. To the extent possible, clients will be informed about and involved in the case planning and will be made aware of the costs. The philosophy about cost disincentives for delays or failures to provide ongoing timely disclosures will be explained. The objective is to have only one motion per issue. The use of motions by conference call or without argument will also be encouraged.

    The early session will also provide a mechanism for screening out unmeritorious claims and dealing with variation applications.

    There will be some cases which will require immediate hearings and which, therefore, need to escape entrapment in the normal mesh of interim interim and interlocutory proceedings and assessments. It is expected that the availability of early judicial intervention and a streamlined process will facilitate the identification of these situations at an early stage and allow them to be channelled in the direction of an early hearing.

    Trials:

    Despite a more resolution-focused process, it should also be a respected principle that trials will be needed in some cases. These will be set on fixed dates and if longer than one day is needed, then consecutive days will be scheduled.

    RECOMMENDATION

    We recommend that an early session/evaluation process involving the early intervention of the judge and a streamlined process be adopted in the expanded unified family court sites.

  • Caseflow Management Features:

    We propose that the division of the "pre-trial" concept into settlement conferences and trial management conferences, as outlined in the Management of Cases chapter of this Report, apply in family law matters as well. It is an approach that fits particularly well with family law issues, and, indeed, is one that has already been pioneered in a number of family law sites around the province. The assistance of case management co-ordinators and judicial support officers, as outlined in the previous chapter, would also apply, subject to the proviso that judicial support officers would not determine contested interim relief issues in Family Law.

    Alternate Dispute Resolution Resources:

    The revised process stresses, through initial screening and diversion during the court proceedings, the importance of mediation and other dispute resolution options, where appropriate. The Review supports the availability of alternate dispute resolution facilities in family law matters, under judicial supervision, keeping in mind the importance of guarding against power imbalances which may exist between parties in such settings.

    The Success of Collaboration and Communication:

    A commitment to education for lawyers and judges and administrative case managers is needed to create the specialty atmosphere required in family law. Most of those who responded to the review on family law issues assumed that the Unified Family Court in Hamilton was to be expanded province-wide through currently proposed amendments to the Courts of Justice Act. This was uniformly supported. The success of the UFC was lauded by all as an informing influence. As well, the success of the Family Case Management initiatives in the General Division and the Provincial Division (Central Court) in Toronto was viewed with great envy by those involved with courts in other jurisdictions.

    The success of these initiatives has been dependant upon the communication and collaboration of court staff, lawyers and judges. It is imperative that court staff be heard, trained and informed on a regular basis. The proposed co-management approach of a professional team comprised of judge, judicial support officer, case management/ administrative person and connected dispute resolution services would draw upon the successful aspects of these initiatives and provide the necessary support.

    It is equally important that public representatives be involved in further initiatives of this nature.

    RECOMMENDATION

    To enhance communication, knowledge, and the quality of the process in family law matters, we recommend that local and regional family law committees, with representatives from the public, the judiciary, courts administration and the bar, be established. A parallel provincial committee would assist in providing a communication and coordination function across the province.

    Technology:

    Special consideration should immediately be given to providing a full range of electronic, video, and tele-conferencing technology for Family Law matters, particularly in Northern Ontario. The existence of such technology would permit judges to have an increased presence in scattered and isolated communities without the parties, counsel, or the judges spending so much valuable time and money on travel.

    Our recommendation for a technology enhanced pilot project in Northern Ontario is included in Chapter 18.

    Legal Aid:

    As we have noted, the Review heard a great deal of concern expressed during our consultation phase with respect to the number of inexperienced lawyers practicing in the field of family law.

    RECOMMENDATION

    We therefore recommend that the legal aid plan consider the development of legal education programs for lawyers providing family law services, in conjunction with the Law Society of Upper Canada and other professional organizations; and that the granting of legal aid certificates to lawyers representing family law clients be contingent upon participation in such programs or upon some other form of accreditation.

    We understand that the Legal Aid Plan has recently adopted a policy respecting the granting of new legal aid certificates where there has been a change of solicitor by a client. Clients will be limited to one change of solicitor per case, in the absence of good reason for the change. We support this policy.

    Purely Uncontested Divorces:

    The Review was reminded by members of the public, the bar, and the bench of the high cost of uncontested divorces. This cost is directly attributable to filing fees, paper intensive documentation, and judicial involvement. In today's society respecting separation and divorce, there seems to be little basis for the continuation of such a resource intensive process in simple, straightforward uncontested cases.

    RECOMMENDATION

    We recommend the development of administrative, low-cost options without judicial involvement for the disposition of purely uncontested divorces, (excluding issues respecting children). Family Support Plan:

    As indicated above, many concerns were expressed by the public, the bar, and court staff about the inaccessibility of the Family Support Plan. It is well-known that the high volume of cases cannot be supported by the current levels of staff and technology.

    The paperwork involved is confusing and mistakes are easily made, but not easily corrected. Although the universality of the policy is commendable, neither the recipients nor the payors are satisfied with the level of client service. A significant portion of resources is directed at recovering payments from those who would pay in any event. The entire focus of the program seems to be on "collection" with little, if any, attention to facilitating the process of "enforcement".

    We recognize that there are legitimate policy and political reasons lying behind the decision to make the FSP program universal and which are well beyond the mandate of this Review. Our consultations across the entire Province have made it plain to us, however, that there are very significant costs accompanying that decision, both from an administrative perspective and from the emotional perspective of those who are payors and payees in the system.

    RECOMMENDATION

    We recommend that serious consideration be given to removing from the Family Support Plan support payors who are in compliance, until there has been a default, and redirecting efforts and resources to customer service issues. The Outstanding Landscape Issue:

    The Government has decided that the Unified Family Court concept will be extended throughout Ontario. This process will take place in stages, over time.

    One of the difficulties the system faces, then, is the parallel existence of three different kinds of "family law courts" in the Province while this process takes place over what could be a lengthy period. There will be the Unified Family Court concept in those areas where implementation has occurred, but family law matters will continue to be dealt with in the General Division and in the Provincial Division where it has not.

    This is troublesome from all perspectives, but particularly from the public's point of view.

    We propose that, pending our Final Report, the Family Law Group continue to advise the Review on implementation issues respecting the "New Process" that we have put forward, and with respect to issues relating to the prospective implementation of the Unified Family Court across the Province. These issues will be addressed further in the Final Report.