Family Law and Access to Justice: A time for Change

Remarks by Chief Justice Warren K. Winkler
5^th Annual Family Law Summit
The Law Society of Upper Canada
Toronto, Ontario

June 17, 2011

Judicial colleagues, members of the bar, policy makers, professional colleagues, friends.

Thank you for inviting me today to the 5^th Annual Family Law Summit.  It is an honour to be with you and be asked to give this address.

I would like to begin with a simple statement; access to a justice system does not necessarily equate with access to justice.  I state this, because there is a need to continually examine our systems of justice and scrutinize them to determine whether they are providing adequate access to justice for our citizens.

There is a growing concern among the bar and the general public that our family justice system is not delivering on its primary purpose: access to justice for families in transition.

I was made starkly aware of the level of dissatisfaction with our family justice system after I became Chief Justice of Ontario four years ago.  I travelled throughout the province, and met with law associations to get their feedback on issues facing the legal system.  The overwhelming theme of these conversations was that the family justice system was in a state of crisis.

I raised my concerns regarding the state of the family justice system in my Opening of Courts Ceremony address in Toronto last September.  I added my voice to a growing group of reformers who felt that there was an urgent need for dramatic and pragmatic revision in the manner that we deliver family law services in Ontario.

Since I delivered my address, there has been an increasing level of public awareness surrounding these issues.  This has been expressed in a fairly steady stream of news stories in both the legal and mainstream press on the need for family law reform.  As we will hear later today at this Summit, the Attorney General is moving ahead with some important changes in services.  However, I remain committed to the notion that more fundamental change is needed.

I agree with Alf Mamo, who has written that our goal in family justice reform should be “meaningful access to justice,” which he defines as “the ability of a citizen to bring about a solution to his or her legal problems that is (a) financially affordable; (b) timely; (c) easy to understand; and (d) easy to manoeuvre through.”[1]

Unfortunately, rather than a system that is financially affordable, timely, easy to understand and manoeuvre through, the public is experiencing a process that is unaffordable, slow and overly complex.  Moreover, rather than finding solutions to their problems, litigants often find that the legal process exacerbates problems in an already emotionally charged situation.

There are two noteworthy trends occurring in the family justice system.  Those that can afford it are increasingly choosing methods of private mediation or arbitration where they seek a faster and more efficient process over which they have greater control.  Meanwhile, the public court system is increasingly dominated by self-represented litigants.  These litigants either commence their litigation in this manner or are forced to represent themselves after exhausting their funds mid-way through the process.  More than half of family law litigants are self-represented.  In some Toronto area courts, over 70 percent are reported to be self-represented.[2]

We are thus increasingly seeing a two-tiered justice system.  On the one hand we have a public court system which is filled with large numbers of people who cannot afford lawyers, and on the other we have a second process for people who can afford to seek justice elsewhere.  While there are many legitimate reasons for using private arbitration, one of those reasons should not be the inability of the public system to efficiently deliver timely and meaningful access to justice.

We need to examine what type of public justice system can best assist our families in finding solutions to their legal problems in a way that is more affordable and efficient.  It is no secret that I am a proponent of increased mediation in our justice system, not just in family law, but throughout the civil justice system.  I have previously stated that “any tenable civil justice system in this still relatively new century will meet the needs of the public only if it provides effective judicial mediation as an integral part of its process”. [3]

I recognize that mediation is not appropriate for every family law dispute.  However, it is my belief that it is valuable in the majority of situations.  It allows parties to reach resolutions more quickly and affordably.  It also provides families with greater control over their destinies and demands that the parties engage responsibly in some form of cooperation.  Family breakdown, particularly where children are involved typically requires a continuing relationship between the spouses long after the dissolution of the marriage or common law partnership.  Mediation facilitates the maintenance of this relationship.  This point is summarized well in the recommendations from the Home Court Advantage Summit:

Mediation fosters greater ongoing accountability and responsibility, since the parties to mediation are required to play a role in setting the terms of their future relationship.  A mediated settlement is more likely than a judge imposed settlement to be accepted, understood and complied with by the parties.

I am, of course, by no means alone in suggesting that we need increased mediation in family law.  There is a growing consensus that there should be more opportunities for mediation in the family justice system.  The Attorney General, to his credit, has responded to this with the expansion of mediation services across the province.  The increased mediation services, along with the expansion of the referral and information services offered by the Ministry of the Attorney General, are all good things.  However, I believe more needs to be done.

A legal and cultural shift is required toward a system that moves mediation from the periphery to the centre of our family justice system.  If it is correct that mediation provides a better way for most families to solve their legal problems, or in other words provides them greater access to justice, then we need to make the structural changes that will give mediation greater prominence and centrality within the system.

I am in favour of court-based mediation.  By this I mean that mediation should be available in and encouraged by the courts.  This does not mean that only judges can be mediators.  There are a wide variety of professionals who can deliver mediation services, including mental health professionals, judges, masters, lawyers and others with proper accredited mediation training. However, these services should be offered at and through the courts as an integral part of our justice system, not merely as an adjunct to our existing justice system.

Access to justice in our courts can be improved by moving toward a system with presumptive mediation.  By “presumptive mediation” I mean a system in which mediation would be the default position to which parties would be steered unless it were determined, because of specific circumstances, that this process was not appropriate for them.

The litigation track would be used for cases where mediation would not be appropriate or where it was found to be unsuccessful.  There are legitimate concerns about the use of mediation where there are allegations of domestic abuse, severe power imbalances, or where proper disclosure has not been made.  In those circumstances mediation may not be appropriate.  There may also be cases where it is clear early on that there is a unique legal issue raised by the case and the parties cannot come to an agreement until that legal issue is adjudicated.  In such cases the best way to deliver meaningful access to justice may, in fact, be through litigation.

That said, in the majority of situations, mediation is appropriate.  Its usefulness is not limited to disputes that are easily resolved.  Difficult cases can be mediated successfully.  The traditional court process should remain as a last resort because it is too costly, time-consuming, adversarial and acrimonious.  It is this traditional adversarial system of litigation that should become the “alternative dispute resolution” process in family law.

Since a process of presumptive mediation would require different tracks, there needs to be early judicial triage.  A system of presumptive mediation should be designed with a triage officer or gatekeeper who could, at the outset of the process, ascertain whether a case is inappropriate for mediation and assign the case to an adjudicative stream where necessary.  The triage officer should be a type of case management judge with the power to make decisions at the onset and ensure that the case is correctly routed and proceeds expeditiously and fairly.  I envision that this person would have the power to make procedural decisions regarding such matters as timetables, disclosure, expert reports and, where necessary, to set trial dates. 

The triage officer must be able to make binding judicial decisions.  It is important that this person have both the de facto and moral authority of the court.  The parties need to understand from the onset that they are entering into a controlled process and that manipulation and delay will not be tolerated.

Where it is necessary to direct a case toward litigation, one judge should be given primary responsibility for the case.  I concur with those who suggest we should be striving toward a principle of “one family, one judge.”  This will help alleviate some of the delay and abuse which exists in the system.  There are litigants who attempt to use our current justice system not to access justice or find solutions but to inflict harm and thwart justice.  They bring unnecessary motions, delay disclosure, and seek irrelevant disclosure from the other party.  These tactics are more transparent and thus more easily controlled when they are repeatedly attempted before a single judge who is familiar with the case.  Cost sanctions and other consequences can be used to control this type of behaviour, but these situations are difficult to manage unless one judge takes control of a case.

Assigning one judge to a case also helps to ensure that every court appearance is a meaningful court appearance.  There is nothing more wasteful of resources, for both the individual litigants and the system in general, than to have court appearances that achieve nothing and do not substantively move the case forward.  Once again, Alf Mamo summarizes this point well by noting that “[a] court appearance for a litigant is not synonymous with having access to justice if the event does not further the resolution of the case.”[5] Judges can ensure that a case stays on track and that appearances are used meaningfully, but this requires active case management by a single judge.  Even more importantly, it is critical that the process itself be simplified to reduce the number of appearances.  Every appearance over and above those that are essential adds expense and delay to a proceeding and negatively impacts access to justice.

If reformulation of the family law system requires some upfront costs, I believe it to be a worthwhile trade-off to save money for the parties and increase access to justice.  Moreover, I am convinced that ultimately these reforms would reduce public costs.  Increased rates of settlement and better case management will inevitably speed up the rate at which cases can be resolved and reduce the number of appearances required.  This will free up costly resources which can be re-allocated to other areas of need. [6]

We should also be cognizant of the fact that there are broader social and economic costs that should be considered.  As the Law Commission of Ontario recently noted, “[b]ecause of the complexity of addressing family issues as well as the cost of legal services, many Ontarians live with unsolved family challenges and problems, which in turn have a cost for the province”.[7]

Finally, I want to reiterate something which I have stated before.  I believe it is time that we expand the unified family court across the province.  The changes that I am advocating can best be achieved in a single unified court with simplified procedures and specialist judges.  In the seventeen sites where unified family courts exist, specialist judges sit who can hear family law matters that arise under both federal and provincial jurisdiction.  In other locations, the parties are required to attend two levels of court to access justice.  This creates the need for multiple sets of rules and increases the number of appearances in areas that do not have a unified family court.  Moreover, the goal of “one family, one judge” can simply not be achieved in a system that requires families to visit two courts.  The current patchwork system that exists across the province increases cost, delay and confusion, all of which reduces access to justice.

The Attorney General for Ontario has publicly stated that he favours this expansion.  I recognize that this expansion would require the cooperation of both the federal and provincial governments.  It is, however, time that the two levels of government come together and finish the “experiment” of a unified family court that was started in 1977.  They need to do this in the interest of providing meaningful access to justice for Ontario families, and they must do so now.

In conclusion, I want to return to the points I began with.  Access to justice requires a system that helps citizens to find solutions to their legal problems in a manner that is affordable, timely, easy to understand, and easy to manoeuvre through.  The current system is not adequately meeting those needs and increasingly litigants are going outside the public justice system to find solutions elsewhere.  The public justice system can be improved by introducing presumptive mediation with triage judges who have the authority to make orders and direct cases appropriately.  Where adjudicative action is required we need specialist judges and we need continuity of judges.  Procedures need to be simplified, and the number of appearances should be reduced to the minimum number that is consistent with a fair procedure.  

Ultimately, I do not believe these changes can be achieved by tinkering at the edges of the existing family law system or by grafting new procedures and services onto the existing system.  The reforms I am advocating can best be achieved by undergoing a fundamental overhaul of the current system.  Only in this way can we properly ensure that all elements of the family justice system work together in harmony to achieve a coherent and balanced system that is affordable, timely, easy to understand and easy manoeuvre through.

Thank you.