Inside Queen's Park: Family court review may bring overdue relief

It’s no secret Ontario’s family law courts are in need of fixing.

So there are a lot of hopes riding on the attorney general’s commissioning of a review by the Law Society of Upper Canada and Justice Annemarie E. Bonkalo into whether allowing non-lawyers to provide services will improve the efficiency of the system and, by extension, reduce some of the angst and heated emotion that come with the dockets.

The question is, what took them so long? We’ve struggled for a decade or more because 50 to 70 per cent of parties in family court can’t afford a lawyer and are self-represented and it’s causing havoc.

Those who have counsel tend to be high-income earners or have such low incomes they qualify for legal aid. That leaves a massive cohort of litigants who have no counsel, no understanding of the process, and little capacity to even fill out the required forms.

The process is jammed while stakeholders patiently try to explain things to those unrepresented participants.

Further, cases involving unrepresented parties tend to take longer and involve more court time and are harder to settle out of court.

Family court isn’t a happy place. It’s emotionally charged and adding to that frustration is the process itself. It doesn’t help when the way things are set up prolongs the agony.

We’ve studied this to death.

From 2009-13, the Law Commission of Ontario looked at other jurisdictions in both Canada and the United States and came up with some plausible ideas, many of which seem to form the basis of Bonkalo’s mandate.

Commendably, there are other efforts in the works.

In appointing Ottawa-Vanier MPP Madeleine Meilleur as attorney general in 2014, Premier Kathleen Wynne included a brief in her mandate letter to “identify ways to triage cases at the initial stages.”

Meilleur reported the need “to streamline the court process to address the needs of litigants before and during the court process.” This will take the form of “two triage models” which will run concurrently with Bonkalo’s review by the AG’s Family Justice Table. 

Two pilots are set to launch this year and the first requires a “triage” in which prospective Family Court litigants meet with a professional and where options such as dispute resolution are explained.

The other is a two-step process, starting with the initiating party who will be screened and triaged. A notice will then be sent to the respondent to attend. After those meetings are completed, the parties will be referred to legal and non-legal supports and a dispute resolution option will be recommended. In the event of emergency or concerns over safety the matter goes straight into the court process.

If the parties proceed to mediation and resolve their issues, they will be referred for independent legal advice and lawyers will prepare the agreement. If they are unable to reach resolution on some or all issues, they will be referred to the court system, but may be fast-tracked to a motion (if necessary) or a settlement conference, provided the alternative dispute resolution practitioner certifies they are ready for one.

As helpful as it might be, it still doesn’t seem to resolve the issue of affordability. Opening up the family courts to qualified non-lawyers seems more prudent, though there are concerns when it comes to self-represented parties going up against a party with counsel if non-lawyers act in court directly.

The process runs on filings and as Jim Canie, co-founder of the grassroots group Canadians For Family Law Reform, notes, the average person is gob-smacked on initial introduction to the family courts and is disadvantaged at every turn.

“I’m skeptical, but hopeful, I guess,” he says of the review.

He hopes the review pushes into other areas such as better leveraging technology, something the courts have been slow to do.

The 2013 LCO report maps out the obvious options such as law students or paralegals assigned from a pool either to work directly with a party or to work under a lawyer’s supervision. Having those familiar with tax law for a defined flat fee might also be of assistance in many cases involving pensions and investments.

After all the reports, reviews, and discussion, it’s about time this government took some action.

It may not grab headlines like carbon cap and trade scheme and it’s a lot less glamorous than jetting off to Paris but it’s the nuts and bolts of running a province.

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Ian Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is [email protected].