Few dispute that Ontario’s family law system is in need of an overhaul, but the breadth of repairs needed won’t be found in a new provincial plan, according to some practitioners and experts.
Attorney General Chris Bentley recently announced a set of long-awaited reforms designed to make family courts less congested and cumbersome. But the government is taking one small step rather than the giant leap required, says Toronto family law lawyer Philip Epstein.
“It won’t solve the long-term problem which is very grave and in some jurisdictions, amounts to a denial of justice,” he says, specifically pointing outside of metro Toronto in the Greater Toronto Area.
“If this is as far as the AG is willing to go, it will delay reform.”
The province said it will introduce a triage system to family law, designed to split out the more difficult, acrimonious matters from the routine.
The changes will also include mandatory information sessions for litigants, administrative changes to make the court process more efficient, and the promotion of alternative means of dispute resolution, like mediation and collaborative separation agreements.
“You’re going to reduce the number of people who for long periods are locked in a bitter, costly family law process,” Bentley said in a recent interview with Law Times.
Bentley said there will be few new resources invested into family law reform.
“There isn’t any money,” he said. “But it doesn’t need it.”
On the contrary, says Epstein, funding is desperately needed.
“If there’s no more money then the family justice system is in danger of collapse.”
Others question how sweeping the changes can be without any additional resources. Georgina Carson, chairwoman of the Ontario Bar Association’s family law section, says Bentley’s reforms will allow the courts to more effectively deal with matters on a case-by-case basis and usher simpler cases away from litigation more quickly.
Much of a judge’s valuable time is wasted marshalling unknowing parties through the process, a problem made worse by the prevalence of self-represented litigants, Carson says.
“It’s really trying to divert parties out of the process before they ever get in,” she says. “The theory is that they’re going to be able to save on costs.”
But the province can only muster so much change without new money, she argues.
“It would seem to me if you’re going to change the system . . . we shouldn’t stint about putting down some money up front,” Carson says.
Nicholas Bala, a law professor at Queen’s University, agrees investment will be required for the kinds of changes the family bar has been advocating for.
The province’s plan excludes amendments for provincewide case management by specialist judges as well as unified family courts, Bala says.
Unified courts combine family law jurisdiction in both federal and provincial law in a single court and are currently operating in 17 locations across the province.
“Some of these things will require resources. Some will require political leadership,” he says.
Carson echoes the need for a provincewide system of unified family courts.
“In my view, it’s a much more streamlined and cost-effective way to bring justice to Ontarians.”
She says the province’s announcement, consisting only of a one-page news release, was short on details.
“Certainly we’d like to hope that this would translate into some concrete results.”
But in theory, she says she agrees with the general principles the AG is promoting.
“He did speak in generalities about increasing up-front legal advice,” Carson says.
Proponents of family justice reform have long argued that simply providing parties with information early on in the process will dissuade many from choosing to fight it out in court. And the province plans to expand mandatory information sessions to two centres in Milton and Brampton.
Bala welcomes any efforts to modernize the antiquated administrative systems of family courts, in which the use of technology is virtually non-existent.
“We’re barely having use of the telephone in the family justice system,” he says.
In announcing the changes, the province also said that recent amendments to family law, taking effect in March, will better serve families.
They include: every person applying for custody of or access to a child will complete a sworn statement setting out the facts and circumstances that relate to the child’s best interests; financial information relating to child support payments will be required to be disclosed on an annual basis; and a parent whose name was left off a child’s birth certificate will be able to apply to a court to have his or her surname added to the child’s surname when the court grants a declaration of parentage.
