Getting to the root of Ontario’s family law mess
NationalPost.com – Full Comment
March 21, 2017. Christie Blatchford
It is accepted, even by those who work within it, that Ontario’s family law system is utterly broken.
That this is a given, in the same way that poor people accept that they’ll have a 10-year wait for social housing, or governments will waste money, or that the sun will rise in the east, is absolutely shocking.
A few lawyers, leading among them the law professor and reformer Omar Ha-Redeye, are trying to change it. More simply conduct themselves properly and reasonably, not adapting “the scorched-earth” approach to litigation that has seen costs balloon.
A few judges have decided they simply aren’t going to put up with it anymore, notably the magnificent Ontario Superior Court Judge Alex Pazaratz, whose decisions simply reek of common sense.
(In his most recent judgment of March 13 about a preposterous case, Pazaratz began with this: “The next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it. It can’t possibly be true. Not if they’re funding cases like this.”)
But the question remains: How is it that these courts remain the expensive, convoluted, soul-crushing places they have become and how is that the players have allowed it to become normalized?
I can appreciate for the civilians involved, divorce and custody are searing, emotional matters; the litigants won’t always behave like adults, especially when their kids are at stake. They’re too invested. We might wish for better behaviour from them, but it shouldn’t be expected.
But the same can’t be said of the lawyers involved, who have a duty to act in the best interests of the child and so often don’t. And judges ostensibly have control of their courtrooms; why won’t they exert it?
I wrote briefly a day ago about a child-custody dispute that has been going on for a decade-plus. I described it as one of the longer-running cases in the province.
As a flood of email in response has demonstrated, that wasn’t so: I’ve heard from one man whose custody case lasted 17 years, one father of two whose battle is now in year 12, another whose case has been in the courts for more than 18 years, a woman whose custody battle began when she was six months pregnant, and a father who with tragic accuracy describes himself as being “in the middle” of a court battle over access that has gone on now for six and a half years.
The sad truth is that he may well be only halfway there.
I haven’t had time to check out the details of these cases yet — and honestly, the length of the cases, the amount of paper, the petty nature of so many motions, it’s all debilitating even to contemplate — but all of the writers used full names and are willing to be interviewed.
According to a paper Ha-Redeye presented at a Family Dispute Resolution Institute of Ontario conference last fall, a 2014-15 Toronto Lawyers Association survey found that 57 per cent of family law litigants don’t have lawyers and are self-represented in court.
You know why? Mostly because they’ve already run out of money on lawyers.
Canadian Lawyer magazine’s 2015 survey on legal fees, Ha-Redeye wrote, shows that the national average estimated cost for a two-day trial is now more than $30,000. The average cost of a contested divorce was $12,000 per party.
But to get to that trial, the average cost was more than $45,000 per party.
As Pazaratz wrote in one of his wonderful decisions, “the need to encourage settlement and discourage inappropriate behaviour by litigants has never been more pressing.” Yet if they were schooled by the super-aggressive lawyers they can no longer afford, that’s how the self-represented will act.
“Disputes often involve economically and emotionally vulnerable litigants, their volatile relationships, and their children,” Ha-Redeye wrote. People are driven by emotional, not rational, considerations. But, he said, though the administration of justice requires lawyers to be emotionally objective, “much of the friction and conflict in family law can actually originate from the family lawyers themselves.”
In other words, instead of fixing the problems and lowering the temperature, some lawyers actually heat things up.
In an appendix to his paper, the lawyer Ha-Redeye wrote that the single most important change the system can make is to the Family Court Rules that govern the conduct of the parties.
The current rules say that judges may hold lawyers personally accountable for costs incurred through frivolous and unsubstantiated allegations, rambling pleadings whose sole purpose is to antagonize, and vitriolic language, etc.
But it’s rarely applied, Ha-Redeye says, and the “may” should be changed to “shall,” so that the judge has to consider the conduct of the lawyer and in particular, if he or she has “run up costs without reasonable cause.”
It would be a start.