A family-law reform committee set up by the Chief Justice of Canada seems an odd thing – a form of advocacy for which government and others are better equipped – but it’s not necessary to shoot the messenger. The message desperately needs to be heard.
An adversarial approach will and should always have a place in arriving at separation and divorce settlements, but the question is whether the system pushes people toward informed, common-sense settlement or takes the inevitable sparks and produces a forest fire.
Chief Justice Beverley McLachlin’s involvement fills a leadership void at the national level and from some provinces. The federal government has put criminal law through a meat grinder of reform, but did not think to convene anything like the Family Justice Working Group put together by Chief Justice McLachlin, which was chaired by Justice Thomas Cromwell of the Supreme Court and included a representative of the federal Justice Department, the Alberta Justice Department, a judge from Quebec and one from Ontario, a couple of law professors and a family-law lawyer.
The lack of consistent leadership is apparent when one considers that unified family courts were discussed and even put in place to some extent in the 1970s, and yet are still few and far between. People go to Superior Court for a divorce setting out such things as custody, support and property division, then to a family court if they wish to argue that the agreement needs to be changed, and then back to Superior Court – a different judge this time – to argue about what those changes should be. Ridiculous, costly, time-consuming and harmful to all involved, including the children.
A family-law system that tries, right upfront, to make people see the light is long overdue. A mandatory information or dispute-resolution session, as proposed by the working group, makes sense, not just in a province or two but everywhere.
The working group has no force of law. It is purely advisory. The court’s involvement strikes some law professors and political scientists as questionable, but it is not all that different in kind from speeches that many Supreme Court judges have been giving over the past generation. In the circumstances, it’s a welcome act of leadership from the Chief Justice. The question now is whether anyone is listening.