Good advice on clogged courts – Opinion/Editorials
Published On Thu Sep 16 2010

Justice is supposed to be blind. Yet judges have long blinded themselves to the grave injustices of a court system so complex and costly that it often bankrupts feuding parents and sells their children short.

Now, one judge is trying to open our eyes to the ossified state of our family court system with a public call for “dramatic” change. Presiding over the opening of the courts this week, Chief Justice Warren Winkler told the province’s assembled legal brain trust — its top judges, lawyers, and Attorney General Chris Bentley — that the status quo is utterly dysfunctional. Tinkering with a broken system will not make it right again.

“I question the effectiveness of the slow and steady approach of fine-tuning and rationalizing the present system,” he argued in his annual speech. “Rather than incremental change, perhaps it is time to consider a more dramatic and pragmatic revision of the manner in which family law services are delivered across Ontario.”

Justice Winkler wants to make it mandatory for feuding couples to first attempt mediation or arbitration — with early access to legal advice and financial data — and leave the formalities and complexities of the courts as a last resort.

His call for an alternative dispute resolution system follows a series of articles by the Star last year describing the human heartbreak and financial cost of an unwieldy system that stokes grievances rather than resolving them. Facing prohibitive legal fees, many parents opt to represent themselves in court, with often disastrous consequences for their cases — and the for the province’s caseload (with 313,000 family law hearings in Ontario’s top courts last year).

By contrast, major judicial reforms in Australia have provided mandatory mediation, with initial legal advice provided free in a holistic setting that aims for shared custody.

Ontario’s Chief Justice, who has a distinguished record as a mediator in complex disputes, has been quietly calling for a fresh look at the province’s judicial scelerosis. He wants judges to take a more activist and hands-on role in brokering deals, rather than staying above the fray.

Now that he has taken his crusade public, the Chief Justice deserves not only a hearing but also a judicious verdict from a government that can no longer ignore its clogged courts.

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