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Four pillars to resurrect a broken system

Legal Report: Family Law
|Written By Judy van Rhijn
Four pillars to resurrect a broken system

When newly appointed Attorney General Chris Bentley set off on his travels around Ontario, hoping to speak to members of the legal community about criminal and civil matters, he found that everyone really wanted to talk about family law. “For many years we hadn’t done much to family law — just little tweaks in the legislation and the process — but everywhere I went the lawyers and judges and people in the community all agreed that something needed to be done.” According to Bentley, the call for reform has been hard sell; loud and persistent. “I heard that the existing approach was ‘very frustrating.’ That’s the nicest way of putting it. Everyone wanted decisions to be made faster with less anger and confrontation and for the system to be one heck of a lot cheaper and less complex.”

A new reform package has now been launched with those goals in mind. Initially kicking off in the Toronto-area Milton and Brampton courts in June, it is hoped the new regime will spread provincewide if found to be successful. The reforms are framed in “four pillars”: information programs and services, triage, alternatives to court, and streamlined court process.

“I’d like to say I came down from the wilderness with the package but really I just listened to what people had to say, then packaged it up into four pillars,” explains Bentley. “We’re essentially doing what we’ve been advised to do by people in the front lines for years. That’s the magic in the approach.” Bentley says you can design anything you like in the boardroom, but if the judges, lawyers, court staff, and community support workers don’t buy in, it won’t work. “You’re really trying to change a culture, and you get them to buy in by listening to people’s good advice.”

In this case, the advice came in the form of a report that was born out of the Home Court Advantage program put together by members of the Ontario Association for Family Mediation, the ADR Institute of Ontario, the Ontario Bar Association, and collaborative practice lawyers. It culminated in a two-day conference last November co-chaired by lawyer Tom Dart, past chairman of the family law section of the OBA. “We had been gathering consensus and making presentations on the need to change our approach to family law,” says Dart. “Then we put together the two-day program, and we had professionals from every area of family law there, from psychologists to Ministry of Attorney General staff.”

Joyce Young, a family mediator and president of the ADR Institute of Ontario, says: “There is consensus in the family law community on the need for change and a consensus on the practical changes that need to be made. We’re attacking the problem where it starts.” There were several meetings with the attorney general during the process. “We are very pleased that the attorney general was willing to entertain us. We wish he had more dollars to put towards the problem but with the resources he has, he is working very hard to put the reforms in place.”

The first pillar focuses on arming participants with information. The cornerstone of the new approach is a mandatory information program for anyone accessing the court — a three-hour program delivered by volunteer lawyers and mental-health workers who are to be paid an honorarium. “Information is power,” says Bentley. “People want information presented in a way they can understand. For too long we have pretended to give information that is framed in shorter sentences but full of the same incomprehensible language, thereby showing how smart we are, and how smart we aren’t.” There will also be a voluntary six-session course, as well as information and lectures available by DVD, video, print, and Internet.

Apart from the straight dissemination of information, Bentley agrees people need to be aware of the potential outcomes of their case. “There needs to be access to legal advice early on. When you first come to court, you should be able to spend a little time with a lawyer. Whether it’s through a legal aid duty counsel, a family law information session, or a dispute resolution officer — a new position in the Superior Court in Milton and Brampton.” Dispute resolution officers have been operating in the superior courts in Toronto for some time. They deal with applications to change existing orders, trying to head off  or narrow the issues before those matters come to court.

Bentley laments the lack of access to duty counsel. “When half of the applicants are unrepresented, that’s not a great formula for success.” He is pleased some of the money recently added to Legal Aid Ontario’s coffers is being directed to address that problem.

The other avenue for legal advice is through the second pillar, which Bentley labelled “triage.” Justice participants are “driven to distraction” by the new term and want to change it to “the new approach to first appearances and issue identification.” Bentley explains his medical analogy: “If you walked into a hospital and said, ‘There’s a heart surgeon here, and a brain surgeon here, and an emergency room worker. Good, I’d like to speak to them,’ you would be told politely, ‘You won’t decide who you get to speak to. Someone else will decide who it’s appropriate for you to see.’ The legal system has a lot less restricted access. Cases that don’t need full courtroom time can still get it with virtually no barriers or encouragement to go elsewhere. We need to spend our resources resolving disputes that can be resolved quickly, and those disputes that need the full resources of the court should be able to get it.”

The Milton provincial court has had the triage system in place for a few months. A team of duty counsel and other legal personnel is responsible for the initial intake and identifying issues the parties need help resolving. It is already developing in a different way in Brampton. Bentley is happy for it to be an evolution. “It may play out slightly differently in each jurisdiction.”

From there people will then be referred to services that come under pillar three, such as alternative dispute resolution, mediation, family counselling, and collaborative law. Bentley believes more can be done with these options. “The biggest challenge is that alternative methods are not as readily available as lawyers would like. We are going to make more [government-subsidized] mediation available.”

Young is pleased about the emphasis on ADR. “I believe it serves families in Ontario much better than the court system does. They and their children are much better off and they are better able to co-operate in the future if they have worked co-operatively to work it out.” Young expects her mediation clients who have been through the information and issue identification process to be much better informed about how to resolve disputes from the get-go. “Once parents who are separating understand the legal process better, many families will choose mediation and will come to mediation in a more like-minded way.” Dart hopes this approach will take the pressure off the court system so its services can be reserved for cases that really need a judge. “Most of the issues in family breakdown are socio-economic,” he points out. “The legal issues can be resolved in a much less adversarial way. The vast majority of people are looking for a peaceful way to resolve their disputes.”

The fourth pillar is the streamlining of the court process. “It’s a complex, paper-intensive process at the moment,” notes Bentley. “We’ve started a web-based court forms assistant. It’s an interactive tool where you can fill in family law forms.”

There are now five committees working on the implementation. “The Family [Law] Rules as they stand are a really good model but people who end up in court are often not represented and we can see they’re having a great deal of difficulty knowing when to file and what to file. Our objective is to reduce the amount of paper and streamline the whole process,” says Dart.

Bentley knows Ontario reforms will be watched with interest across the country. “It is absolutely a common theme when it comes to family law. There are the same problems and the same complaints everywhere. We watch what they’re doing and people are watching what we’re doing. ”

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