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What's the holdup?

Legal Report: Family Law
|Written By Elizabeth Thompson
What's the holdup?
Illustration: Jeremy Bruneel

When Justice David Steinberg was first named to the bench in 1969, couples breaking up in Ontario faced a labyrinthian maze of courts and jurisdictions. There was the Provincial Court and the District Court, the Superior Court and the Surrogate Court — all with jurisdiction over some part of family law. Proceedings could be started in one court, only to end up in another. Some of the law even dated back to British 19th-century ecclesiastical courts. “It was somewhat frustrating,” he recalled. “More for the clients than for the judge.”

As a result, Steinberg was among those who began looking for a new, simpler process. “When you get exposed to all of this law and how difficult it was, you begin to look for new ways and new ideas on how to deal with families in stress.” The solution was to create a unified family court and in 1977, Steinberg became one of the first justices of the UFC.

This summer marks 35 years since that first groundbreaking pilot project to streamline the family courts in Hamilton, Ont., opened its doors. But while unified family courts have far more fans than foes, their implementation remains a patchwork quilt across Canada. There are 39 UFCs across seven provinces — 17 of them in Ontario. There are eight in New Brunswick, four in Manitoba, three each in Nova Scotia, Prince Edward Island, and Saskatchewan, as well as one in Newfoundland and Labrador. Quebec, Alberta, and British Columbia do not have any.

Because unified family courts have to be negotiated with each province, the result is that each province’s UFC is slightly different.

People like Steinberg began discussing the idea of unified family courts in the early 1970s, but the idea didn’t begin to gel until a landmark 1974 Law Reform Commission of Canada report.

While superior courts have exclusive jurisdiction over divorce and property issues, as well as related matters such as support, custody, and access, provincial courts oversee cases where no divorce is being sought but there are issues such as support, custody, or access, as well as the enforcement of support obligations, and adoption and child protection, says Nicholas Bala, a law professor at Queen’s University.

That division means families in the throes of a divorce in jurisdictions where there is no UFC can find themselves going from one court and judge to another to resolve the different issues involved in their breakup. Those divisions, coupled with the increasing complexity of family law cases — complexity that has continued to increase over the years — spurred the introduction of the concept of UFCs.

“It was designed to enable families to resolve all outstanding legal issues in a single forum, providing ‘one-stop shopping’ for family law services by unifying the jurisdiction of the federal government and the provinces into a single court,” explains a 2009 federal government evaluation of the UFC system. “Key characteristics of the unified model include employing simplified procedures in a user-friendly environment, having specialist judges, and providing a full range of professional and community support services.”

However, it wasn’t until 1977 that the pilot project in Hamilton got off the ground. Other pilot projects followed in Saskatoon in 1978, Fredericton in 1979, and St. John’s in 1979. The federal government’s 2009 evaluation found that unified family courts have been a success. Areas with UFCs are more likely to have specialized judges to hear cases and a greater range of family justice services such as mediation or conciliation to reduce the number of cases that have to go before a judge in the first place. “The average proportion of consent orders per case at all UFC sites taken together is 29.7 per cent, which is almost identical to the average proportion of consent orders per case at non-UFC sites at 29.3 per cent,” wrote the authors of the evaluation. “However, when the UFC sites were examined separately, there were dramatic differences in the proportion of matters resolved through consent/agreement.

“Results for the intensity of court usage indicate that UFCs may be more efficient than traditional courts in terms of issue resolution,” said the report, adding that the total number of activities per application or new filing is lower in the unified family courts than in traditional locations they compared.

Some, like Dalhousie University law professor Rollie Thompson, argue the unified family courts also tend to help the increasing number of people in family disputes who aren’t represented by a lawyer.

However, the same problem of divided jurisdictions the UFCs seek to resolve also helps make them harder to create. Like a marriage, both partners — the federal and provincial government — have to be in the mood at the same time in order for new courts to be born.

At times, the federal government has been the one eager to expand the courts and the provinces have balked, says Thompson. Now, provinces like Ontario and Nova Scotia are keen to grow the UFC system and it is the federal government that appears to be reluctant. “You need two levels of government interested in a unified family court to make it work,” explains Thompson. “This current federal government has had not much interest in the unified family court.”

Bala says the expansion of UFCs has been “glacial” and “deeply frustrating.” “I think there’s a political side to it and there is a judicial side to it. The political side is who is going to appoint the judges and who is going to pay for the judges and it’s obviously an ongoing area of federal-provincial disagreement. I think it is very unfortunate that the two levels of government can’t agree about what is a relatively small issue compared to the social and economic value of unified family courts.”

One of the factors that appears to be hampering the expansion of UFCs in Canada is money. The federal government has to be willing to appoint and pay a unified family court judge to hear cases that up until then might have been heard by a judge appointed and paid by the province while the province has to be prepared to fund the services that accompany it.

In June, at the unveiling of a plaque to mark the Hamilton pilot project, federal Justice Minister Rob Nicholson praised the concept of unified family courts but stopped short of promising additional new money to create more of them. Carole Saindon, spokeswoman for the federal Justice department, says Ottawa committed $122 million in 2009 for a five-year program to improve family justice services such as mediation and parent education programs to facilitate early collaborative resolution of family law cases.

Expanding the UFC model “raises significant policy and financial considerations that would need to be addressed in the long term,” says Saindon, adding that “other provinces, including Alberta, B.C., and Quebec have not adopted the UFC model and yet have successfully delivered the critical combination of access to family justice services and specialized judges to support positive long-term outcomes in family disputes.”

Laurie Pawlitza, the former treasurer of the Law Society of Upper Canada who has practised family law for 25 years, supports UFCs but she can understand why the government hasn’t devoted more money to them at a time where it is cutting back elsewhere.

Some observers, like Bala, also point to the judiciary as a factor in the slow spread of the courts. “[While] the vast majority of judges who have a concern and interest in family law support a unified family model, there are some in the judiciary, some senior judges, who are, I think, reluctant to see a unified family court because it implies a degree of specialization that they are opposed to. I think there are some who favour a generalist jurisdiction of the Superior Court.”

In Quebec, political will is a stumbling block, says Nicole Parent, past president of the family law committee of the Canadian Bar Association’s Quebec branch. Parent, who has practised family law for 27 years, says a 2005 report explored the idea of a unified family court for Quebec but the idea seems to have “died on the order paper.” Parent supports the idea of a UFC for the province, saying it would make it easier for families.

Thompson says there have been “flashes of interest” in Alberta and British Columbia but no strong move towards unifying their family courts.

Ontario Superior Court Chief Justice Heather Smith says the UFC model has led to transformative changes in Ontario’s courts. While there are 17 of what are now called Family Court Sites of the Superior Court of Justice, the family support services and approach inspired by the UFC system — such as putting the needs of children first — can now be found in 50 Superior Court sites across the province.

Since September 2011, Ontario couples splitting up must attend a mandatory information session and have access to other front-end resources such as mediation and legal aid advice to help them resolve their dispute, she says. “This has transformed the landscape. We’re still only nine months later. This hasn’t even been up and operating for a year and already you have staggering success rates of 90 per cent of enthusiastic support for mediation that’s offered on-site with followup off-site.” The mandatory information session in particular has made a big difference, she notes. “This is a free service that begins well before the affidavit wars and the vitriolic litigation that used to be the norm in family.”

As for family court branch sites, Smith says she supports their expansion on an “incremental basis, where appropriate, feasible, and fully resourced.”

While UFCs have widespread support, observers say there are still improvements that can be made in both the courts and in the way family law cases are handled. Bala says he would like to see more case management in UFCs and more family support services. “There’s no doubt that children would benefit, parents would benefit from having greater access to support services, whether we are talking about legal aid, subsidized mediation, counselling — those services to some extent are available but often it’s very difficult in practice to get access to them.” For Thompson, all family courts, not just the UFCs, need far more funding than they are getting.

Despite the hurdles, most observers expect to see more unified family courts in coming years. However, they warn it could be a while for UFCs to expand across Canada. Until then, divorcing couples in some parts of Canada risk facing the kind of labyrinthian legal system that Justice Steinberg first set out to change four decades ago.

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  • President, Danreb Inc.

    Julien Payne
    For a detailed analysis of unified family courts, see Julien D. Payne, A Conceptual Analysis of Unified Family Courts (December 31, 1973) which was prepared for the the Law Reform Commission of Canada, The voluminous report is accessible online.

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