New legislation from the NDP government will soon steer the heartbroken away from our adversarial court systems as they try to sort out such thorny issues as separation, divorce, property division, child support and custody arrangements.
As Neil Sedaka first sang in his melancholy 1962 hit, “Breaking up is hard to do.”
When Sedaka wrote his song, he could easily have been writing about the messy, expensive and often wrenching court showdowns that often accompany the dissolution of family relationships.
But in Manitoba at least, new legislation from the Progressive Conservative government will soon steer the heartbroken away from our adversarial court systems as they try to sort out such thorny issues as separation, divorce, property division, child support and custody arrangements.
On March 12, Justice Minister Cliff Cullen announced a new bill, the Family Law Modernization Act. The first legislation of its kind in Canada, the act will stream all but the worst cases — primarily those involving actual or threatened violence — away from the adversarial court system and toward “resolution officers.” They will try to help couples reach mutual agreements in a more conciliatory fashion.
Manitobans will act “as essential partners in designing the tools and services they need,” Cullen said in a statement. A three-year pilot program will begin in 2020 allowing couples to opt for resolution officers rather than appear before a judge. If a dispute isn’t resolved at this stage, it would then be moved to an adjudicator who would recommend an order. If neither party objects, an adjudicator’s order would have the same force and effect as a court order.
Allan Fineblit, a former CEO of the Law Society of Manitoba and a Winnipeg lawyer with Thompson Dorfman Sweatman LLP, chaired a Family Law Reform committee composed of judges, lawyers and social activists. In June 2018, the committee released a report called “Modernizing Our Family Law System.” The new family law act, which followed closely on the heels of the report, largely reflects its recommendations.
In 2017, noted Fineblit, the Manitoba Court of Appeal delivered a decision in the case of Dunford v. Birnboim. Citing numerous reports, the court wrote that “an adversarial system is ill suited for . . . couples who are seeking to reframe their familial relationships in a fair and prompt manner.” Conflicts between couples, unlike those between strangers, said the court, “entail much more than resolving legal differences. There are emotional, psychological and financial aspects that also need to be resolved.” It added that marital disputes have an ongoing nature because of continued parental responsibilities.
Fineblit’s committee got calls and letters from hundreds of Manitobans who went through the grindstone of the traditional court system during divorce and separation proceedings. “They all had the same story, which is, ‘I spent a fortune. I mortgaged the house. I divorced and it took seven years and I had an unsatisfactory resolution,’” he says.
“The system isn’t working for most people,” says Fineblit. “If you are really poor, you can get legal aid. If you are really rich, you can afford to go through the court process. But there are a lot of people in between those two that are really stuck.”
More and more Manitobans are trying to represent themselves in family law matters, adding to the pressures on both themselves and the court system itself.
“What’s at stake is this is one of the most important things you are ever going to be dealing with in your life. You are going to be dealing with your children, and your life savings and how that gets divided,” says Fineblit. “Without legal help that’s crazy. And yet the courts are full of self-represented people because they can’t afford to retain lawyers.”
One sticky point for the Manitoba government is that divorce falls under federal jurisdiction, not provincial. That meant that, under the new act, the province couldn’t force divorcing couples to use resolution officers and adjudicators instead of judges. However, the province’s constitutional law branch found a way to allow divorcing couples to opt in to the process with their consent.
“My thinking is that most people will choose to opt in,” says Fineblit. “Why wouldn’t you? It’s faster, it’s cheaper. If it works the way I think it will, it will be so attractive to people as compared to the [court] alternative that everyone would opt in unless there is a really good reason not to.”
Robynne Kazina practises collaborative and family law with Taylor McCaffrey LLP and has a degree in social work. “There are still a lot of unknowns,” she says about the new legislation. For instance, whether resolution officers will have to be lawyers remains to be seen. “Most people in the legal community think it is important they be a lawyer in order to understand the issues of the law.”
Kazina is also troubled that the new process will be mandatory for almost every Manitoba couple involved in a family law dispute. “Every family law case has different facts and dynamics. This system will work great for some matters, but it won’t work well for the matters that need urgent access to a judge.” It might, she says, delay things for those who need urgent access to a judge. “The definition of what an emergency case is is pretty limited. It would only cover about five per cent of the most serious kinds of cases. It’s not broad enough to handle custody matters that may be more urgent.”
Still, for Kazina, new legislation aimed at keeping couples out of court and potentially saving them the cost of protracted legal battles is a good thing. “The court process can pit people against each other.” If it gets testy, as it often does, she adds, “It’s very difficult to parent with that person and have a relationship afterwards when they are in a system where there is a winner and loser.”