Is the situation in Ontario’s family law courts bad enough to prompt  change? Innumerable studies in recent years identifying problems in family law processes and courts have not had an impact on alleviating the crisis in delivery of family law in this province and elsewhere in Canada. The crisis is manifest in the overwhelming numbers of self-represented litigants in the courts, the lack of access to mediation or other conciliation services, the high costs of private legal services and restricted eligibility to Legal Aid. The most recent report by the Action Committee on Access to Justice in Civil and Family Law Matters reiterates the call for meaningful change.[i]  The Committee concludes that while the substance of family law is fair, the delivery fails families. This failure is not for a lack of sensible ideas about how to improve the system but rather for a lack of will and resources to implement those ideas. Some improvements have been implemented in Ontario but on a piecemeal basis. The Committee makes a number of recommendations to reform the family law system. The Committee’s  stated goal is to foster what it calls “Consensual Dispute Resolution” (“CDR”) over litigation wherever possible. Some of the recommendations are:

1. To expand unified family courts province wide. No one could      defend the practice of having two family courts operating in overlapping      spheres of jurisdiction. It is a consequence of our federal system but not      a necessary consequence. Some 35 years ago the first unified family court      opened in Ontario. All Ontario families should have access to a unified      family court with specialist judges. These courts can then be the hub of a      system that delivers a comprehensive set of services to separated      families, not just traditional litigation.
2.  To      expand eligibility for legal aid. The threshold for legal aid in      family law is extraordinarily low. Only those at the lowest income levels      are eligible for a certificate. There is no coverage for those in income      levels from $20,000 to $50,000 yet private legal fees are largely out of      reach for Ontarians at those income levels. The Committee recommends      expanded use of legal aid clinics as a cost-effective way to provide legal      aid service.
3. To expand the role of paralegals. The Committee emphasizes the      need for paralegals to be trained and supervised. Paralegals currently      cannot provide family law services independently although many law clerks      work with lawyers in private practices. There is a risk that simply      expanding the scope of practice for paralegals will paper over the problem      if paralegals perform work that requires a level of knowledge and skills      that they do not have. Clients don’t know what they don’t know and may not      be able to assess the level of expertise needed to advise them in family      law matters which involve complex legal issues.
4. Exploring the use of inquisitorial models for family law hearings.      This is the most radical recommendation and, in my view, the one with the      most potential to improve delivery of family law in our system. Our      current system is based on an adversarial system in which opposing parties      come to court with the information and legal arguments and contest the      facts using formal rules of evidence. The judge plays the role of neutral      arbitrator who is not permitted to enter into the fray. The inquisitorial      model, which is used in many countries, permits the judge to actively      direct the proceedings, to investigate and to propose resolutions. In a      system overloaded by self – represented parties who are, on the whole,      without the knowledge or training to be able to analyse the law or present      the facts properly, the inquisitorial system is the only way that family      law matters will be properly heard and disposed of on a fair legal basis.      It is not realistic to expect that self represented parties will vanish      from the system even if legal aid is increased. Nor is it realistic to      expect that the legal skills lawyers acquire through years of university      training, articling and experience, can be taught to self –represented      parties in information sessions. It is simply not possible to learn the      rules of evidence in a webinar.  Yet      the rules of evidence are not an esoteric exercise. These rules have been      developed over centuries to delve into the truth. In cases with      self-represented parties the only person in the court room who knows the      rules of evidence is the judge. An inquisitorial model would enhance the      judge’s ability to determine the facts.

The Committee is not alone in proposing radical changes to our family law system. Let’s hope that this time the province and federal government will listen and take action.