Chapter 7 - Family Law

Introduction

In our First Report, we proposed a "resolution focused process" for family law to address the many concerns we heard during the consultation stage of the Review with respect to family law proceedings. [1] Key components of the proposed new process include:

  • early education in schools, combined with community-based information services, designed to inform members of the public about their rights and responsibilities in relationships and their responsibilities towards their children, and to provide resource information about the types of circumstances in which relationships break down;
  • an information video respecting family law matters, prepared for distribution through community resource centres, shelters, legal aid clinics, the courts and law offices; and mandatory viewing (except in emergencies) of that video by parties contemplating family law litigation prior to the institution of any court proceedings;
  • alternative dispute resolution (ADR) techniques, to be considered before the commencement of a family law proceeding;
  • an early evaluation session involving the early intervention of judges, preferably before the return of a first motion;
  • a streamlined process and case management regime for all family law matters in all courts;
  • local and regional family law committees, to be established, with representatives from the Public, the Judiciary, Courts Administration and the Bar, to enhance communication, knowledge, and the quality of the process in family law matters; and a parallel provincial committee to assist in providing a communication and co-ordination function across the province;
  • legal education programs for lawyers who provide family law services, to be developed by the Legal Aid Plan in co-operation with the Law Society of Upper Canada and other professional organizations, with a view to requiring participation in such programs, or some other such form of accreditation, as a condition of the issuance of legal aid certificates in such matters; and,
  • a low-cost administrative option for the disposition of uncontested divorces (excluding issues respecting children) free of judicial involvement.

The Family Law Working Group

As noted in Chapter 4, dealing with matters of implementation, a Family Law Working Group has been constituted since the release of the First Report for the purpose of developing and implementing the Review's proposed "resolution focused" family law process. The Working Group is chaired by Regional Senior Justice B.T. Granger, and assisted by Ms. Debra Paulseth, the Ministry's Regional Director for Toronto Region. [2]

The composition of the Working Group is widely diverse and representative on a province-wide basis. There are 15 members. Two are General Division Justices; one is a Family Division Justice; two are Provincial Division Judges; six are members of the Bar (three from outside of Toronto); one is a Public representative; another a law professor; and three are Ministry representatives.

At its first meeting in early Fall 1995, the Working Group divided its tasks by subcommittee, formed for the purposes of:

  • establishing regional and local family law committees;
  • creating an information services plan;
  • developing a simpler process for uncontested divorces;
  • proposing one set of family case management rules for the province;
  • developing proposals for improving the curricula for schools and the Bar Admission Course, and to set standards for obtaining Legal Aid certificates; and
  • developing specific suggestions to save litigants costs and to recommend ways in which the use of "costs" as a deterrent to frivolous steps might be introduced.

The full group has met on three occasions altogether, on each occasion for two days, and at least one further meeting is planned. Significant progress has been made in developing suggestions for building upon the initial recommendations of the Civil Justice Review and putting into place various of the "key components" to the new resolution focused process, outlined above. A summary of the Working Group's proposals which the Civil Justice Review endorses is set out below.

a.   Case Management

In terms of a province-wide approach to case management timeframes in family matters, the Working Group supports the adoption for family law cases of the timetable recommended by the Civil Case Management Working Group for standard track civil cases, [3] subject to the statutory exceptions set out in the Children's Law Reform Act [4] and the Child and Family Services Act. [5] It is unanimously of the view that no local or regional timetables should be prescribed.

Further, the Working Group agrees with the Review's earlier recommendation [6] that a mandatory case conference in family matters take place before interim relief is sought, subject to emergency applications, and that individual timelines be established at such conference by the case management judge. The first case conference would feature:

  • compulsory attendance of the parties;
  • completion of memoranda of agreements and identification of outstanding issues;
  • establishment of individual timelines where appropriate;
  • scheduling of all future events; and
  • consideration of referral to ADR.

While the Group is unanimous that the expansion of case management is dependent on adequate systems' support and competent trained staff, no unanimity has been reached regarding the potential role of Case Management Masters in family law proceedings.

b.   Family Law Committees

The Working Group has pursued the Review's recommendation that local and regional family law committees be established. Through correspondence with the Regional Senior Justices and Judges and the County and District Law Presidents' Association, a comprehensive database of all existing Family Law Committees has been created by the Working Group. The Group has also encouraged the creation of these committees for each local family court. Over the past year, in Metro Toronto, three Family Bench and Bar Committees were created, in addition to the two existing committees. On June 20th 1996, the first regional meeting of all five committees was held.

To assist with ongoing communications between the different family committees, the Working Group recommends that a Web Site for Family Law Committees be established.

c.   Streamlined Processes

As it would appear there are constitutional impediments to granting uncontested divorces using a purely administrative mechanism, the Working Group is considering other options for streamlining this process and making it more accessible and less costly. The Working Group believes that the total court fees in relation to an uncontested divorce are excessive and has noted the discrepancy in the fee structure between the General Division and the Family Court. It suggests that the current tariffs be amended to eliminate the fee for "setting down" uncontested divorces and that, to ensure consistency, the tariff for both courts be set at $150.

The development of standard, simplified court documents, including a standard form of affidavit, recommended in the First Report [7] , was deferred by the Working Group in light of the work undertaken in this regard by the Family Rules Committee. The Rules Committee is in the process of finalizing a set of uniform family rules which will be released this Fall.

d.   Information Services

North American research considered by the Working Group supports the Review's recommendation that the viewing of an information video dealing with family law matters be a mandatory pre-condition to entering the family law court process, with an exception for emergency applications. An approved outline for the video has been prepared. The Working Group has recommended that the viewing of the video be accompanied by verbal presentations from both legal and mental health professionals.

An index of family law information pamphlets and other relevant materials has also been prepared, together with the names of suppliers and corresponding cost, which has been forwarded to all Family Law Committees in the province.

e.   Expansion of the Family Court

The Unified Family Court in Ontario was expanded in the Spring of 1995 from one to five courts. This branch of the General Division is now located in Hamilton, London, Barrie, Kingston and Napanee, as previously noted. The Family Law Group urges the continued expansion of the Unified Family Court across the Province.

f.   Mediation

The primary focus of the Working Group has been on early intervention in family law cases through mandatory information services. The Group has not reached a consensus regarding the concept of mandatory referral to mediation in the family law area, although it has agreed that mediation services currently provided in the expanded Family Courts should be generally available.

The Civil Justice Review supports the availability of mediation and other forms of alternate dispute resolution for family law matters. In this regard, it is important to note the extent to which ADR is currently used in family law disputes and the fact that many of these techniques were pioneered in this area. The issue of ADR and Family Law is discussed in greater detail in Chapter 5.2 of this Supplemental and Final Report.

g.   Legal Aid

Legal Aid for family law matters has changed dramatically since the release of the First Report. Three years ago, 61,704 certificates were issued in relation to family law matters. Within the next year, this number is expected to drop to 15,000. Certificates will have capped hourly limits.

The Working Group intends to pursue issues related to the changing legal aid environment and to make recommendations with respect to unrepresented litigants. Preliminary suggestions include:

  • legal aid duty counsel in the General Division;
  • no court attendances unless it is absolutely necessary; and
  • increased use of telephone motions and conferences.

Clearly legal aid in family law matters is important and must be addressed. However, as discussed in our First Report, legal aid issues are being actively considered in a number of forums. [8] The Civil Justice Review does not wish to duplicate these efforts and feels that it cannot add productively to the debate at this time.

The Need for a Family Law Review

While the Family Law Working Group has made considerable progress, both in developing new ideas and in pursuing implementation of the Review's earlier recommendations, its deliberations have been bedeviled by the same difficulties which bedevil Family Law generally in the diverse and populace Province of Ontario -- overlapping federal/provincial jurisdiction, multiple levels of courts with jurisdiction in the area (and the existence of differing rules of procedure and practices within those courts) [9] , regional differences, urban/non-urban differences, deeply held convictions and the simple enormity and complexity of a subject that is voracious in its demands on the resources and energies of modern society. Matters of divorce, custody, support, child protection and care, family property, and the civil aspects of domestic disputes and violence -- octopus-like in the reach of their tentacles throughout society in general -- touch all of us in one fashion or another.

It is little wonder, then, that the Family Law Working Group has not been able to solve all of the difficulties relating to family law at this point in time and that it has been unable to reach a consensus in several difficult areas. These include such concerns as the ultimate shape of case management in family law cases; the application of ADR techniques and, in particular, whether mediation should be mandatory; the role of Case Management Masters as opposed to Judges in family law matters and whether, indeed, there should be such a role at all.

We have no doubt these problems can be sorted out in the long run, but the very process of dealing with them in the context of attempting to implement the recommendations of the Civil Justice Review has caused us to focus on something that has been flitting around the edges of our deliberations since the beginning of our mandate. Family law is a subject far too complex and controversial to be dealt completely and adequately within the context of a civil justice review itself. Just as "Family Law" is in a sense a world of its own, it requires -- and deserves -- a study of its own.

What is needed, in our view, is a "Family Justice Review" which endeavours to do for family law what the Civil Justice Review has been able to do for the balance of the civil justice system -- a "royal commission" on Family Law, if you will.

The area is vitally in need of reform. During our consultations around the province, the most frequent concerns raised related to family law issues.

As the Civil Justice Review, we have made a number of recommendations which we believe will improve the quality of family law services provided in Ontario. The Family Law Working Group has made considerable progress in certain areas in advancing the process further. We feel, however, that as a Task Force mandated to consider all aspects of the civil justice system, we have taken reform of the family law process as far as we can at this time. The complexity of the issues and the divergence of views impedes us from proceeding further in this field, without turning the Civil Justice Review into something which it was not intended to be. There is much more work that needs to be done, but it is work that cannot effectively be done without the benefit of further consultation and reflection, and a totally family-law focused mandate.

Accordingly, the Task Force makes the following recommendation:

RECOMMENDATION

We recommend that a Family Justice Review be undertaken to consider all family law issues, building upon the work of the Civil Justice Review and the Family Law Working Group, and involving consultation with representatives of all constituencies in this area including the family law Bench and Bar, representatives of the Ministry, and members of the Public who have participated in family law proceedings.


Footnotes:

[1] First Report of the Civil Justice Review (Toronto: Ontario Civil Justice Review, March 1995), at pp. 275 - 283 [hereinafter "First Report"].
[2] Ms. Paulseth was formerly Counsel to the Civil Justice Review during its First Report phase.
[3] See supra, Chapter 5.1.
[4] R.S.O. 1990, c.C.12.
[5] R.S.O. 1990, c.C.11.
[6] See First Report, supra, note 1, at p.277.
[7] Id.
[8] Id., at p.131.
[9] The Ontario Court of Justice (General Division) has general jurisdiction in family law matters, but procedures vary between the concentrated high volume practice in Toronto Region and elsewhere in the Province. The Ontario Court of Justice (Provincial Division) has statutory jurisdiction in some areas and concurrent jurisdiction with the General Division in other areas, with different fee structures and practices. The Unified Family Court has now been expanded to five centres across the Province -- Hamilton, London, Barrie, Kingston and Napanee -- without common procedures for each site.

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