An unreleased report commissioned by the country’s top judge is urging a radical overhaul of Canada’s family law system.
The report to Chief Justice Beverley McLachlin, scheduled for release next month, calls for restructuring the family law system from the ground up, with a focus on streamlining the court process and ending a fixation on combat.
The report, from a committee headed by Supreme Court Justice Thomas Cromwell, goes on to make more than two dozen recommendations, including the creation of specialized judges who can shepherd a family law dispute from beginning to end.
The family law system has been under attack for much of the past two or three decades over litigation that drags out and the destructive effect of the adversarial process on couples who are vulnerable and prone to go on the attack. And the inordinate costs of litigation have led to a massive increase in the number of litigants who represent themselves – now as much as 70 or 80 per cent.
A copy of the report, obtained by The Globe and Mail, says that estranged spouses and their children are seriously damaged by the adversarial system; and that judges, lawyers and law schools must embrace a culture of mediation and settlement.
The ground-breaking report also recommends the imposition of painful cost awards against litigants who behave badly or impede settlements.
It says that law schools have to stop minimizing the importance of family law in their curricula and that legal aid for family law cases must be sharply increased.
“Cuts to family legal aid have a disproportionate effect on women and children, particularly those who are most vulnerable – e.g. aboriginal, immigrant and disabled women,” the report notes. “Even middle-income levels typically cannot support the cost of any significant amount of legal representation.”
The report also recommends the creation of unified family court branches across the country to provide one-stop shopping for litigants who must currently navigate between the provincial and federal court systems.
Chief Justice McLachlin struck the committee out of concern that justice is fast becoming inaccessible to a vast proportion of the country. She asked her Supreme Court colleague, Mr. Justice Thomas Cromwell, to head the group – known as the Action Committee on Access to Justice in Civil and Family Matters. Judge Cromwell is expected to unveil the report and its 31 recommendations next month.
Another of the report’s recommendations urges that estranged spouses be forced to attend one session with a qualified professional mediator before they are permitted to proceed toward a trial.
The working group states that the failure of the adversarial model to resolve family law disputes has taken an enormous toll on the finances and mental equilibrium of litigants.
“Adversarialism is a deep habit of our culture,” it says. “It is a default position, an attitude that people in Western cultures learn early and tend to employ quite automatically.”
Family law disputes affect more Canadians than any other single area of law, the report states, yet law schools treat it as an afterthought because they have become so geared to pleasing the demands of large law firms.
“There is a causal relationship between unresolved legal problems and increased health, social welfare and economic problems,” the report says. “We wonder at the ultimate impact this will have on public confidence in the justice system and on civil society.”
The Chief Justice’s committee applauds a number of efforts that have been made in various jurisdictions to speed up and mediate family law disputes, but says they have been piecemeal and not well co-ordinated.
It says the court system needs fewer generalist judges who merely “umpire” family disputes, and more specially designated judges with the expertise and commitment to prod litigants toward a negotiated settlement early in the process.
The committee says the press, with its innate love of stories involving conflict and emotion, also play a key role in maintaining a public perception that the family law system is a forum for “trial by combat.”
It says judges, practitioners and bar associations can help reverse this psychology by throwing themselves behind public education programs. Court personnel, it says, can also play a role by providing mandatory information sessions and user-friendly services in courthouses, allowing self-represented litigants to learn about the legal process and the mechanisms available to settle cases quickly, peacefully and at minimal cost.