Family justice in Canada is at a breaking point

In spite of the reform efforts to date, public confidence is at an all-time low, the number of litigants without counsel continues to rise, and signs point to a worrisome trend of people choosing to opt out of the system altogether, abandoning the relief to which they may be entitled. It’s time for some fresh thinking about what can be done. One solution may be a complete overhaul of the system, including allowing a wider range of professionals to take part. It’s time for a critical examination of all potential alternatives, no matter how improbable they seem, without the assumption that business as usual is best merely because it’s usual.

In some jurisdictions, up to 80 per cent of litigants are entering the family court system without the benefit of counsel. For most this isn’t a choice, but a matter of necessity. High fees put lawyers out of reach for a growing number of middle-income Canadians, who must then navigate a challenging and complex court system on thier own. In some areas of the country, there aren’t enough family law lawyers to meet the needs of those otherwise able to afford legal services.

Making matters worse, our system of justice is adversarial, which makes perfect sense when handling the arm’s-length disputes of shareholders and the parties to a car accident, but is toxic for people with children who must maintain a functioning relationship with each other into the indefinite future. Typically, neither bar nor bench has much training in the sensitive psychosocial implications of family restructuring after separation or the constructive management of family conflict. Nor are we particularly well-equipped to handle delicate issues like addictions, attachment disruption or allegations of abuse with any efficiency.

All this is taking a toll on the efficiency of a court system dealing with a growing backlog of cases. Lack of familiarity with the law, court processes and the rules of evidence increase the number of ill-conceived claims and adjournments and the time it takes to resolve both interim applications and trials. It is taking longer and longer to get to trial; data collected by the federal government shows that more than half of Alberta divorce files were four or more years old in 2015, and many lawyers have had the curious experience of watching their clients’ children grow up before their eyes.

Efforts to remedy these problems have met with modest success.

In 2012 and 2013, questions about access to family justice occupied an unprecedented prominence in the public and professional discourse. This was thanks in part to a trio of reports: Professor Julie Macfarlane’s groundbreaking study of the experiences of litigants without counsel, the report of the Family Justice Working Group of the National Action Committee on Access to Civil and Family Matters and the report of the Canadian Bar Association’s Access to Justice Subcommittee. These reports collectively spurred reform initiatives across Canada, some of which have fizzled and some of which have thrived. Outside of British Columbia, however, it is not at all clear what these initiatives have accomplished.

On the legislative front, Alberta was the first to jettison conflict-laden terms like custody and access in 2005, in favour of presumptions of parental guardianship and child-centred language addressing “parental responsibilities” and “parenting time.” British Columbia followed suit in 2013, additionally emphasizing the importance of agreements and out-of-court dispute resolution options, and codifying mobility disputes and the use of parenting coordination. Nova Scotia came close to the mark in 2017, but ultimately opted to retain a scheme including custody. Now, Bill C-78 proposes sweeping amendments to the federal Divorce Act that follow the paths blazed by Alberta and British Columbia. It greatly expands the list of factors to consider in assessing the best interests of children.

Meanwhile, unified family courts, first established in Ontario in 1977, have spread across the land and will enter Alberta later this year. According to research conducted by the Canadian Research Institute for Law and the Family in 2016, most family law lawyers practicing in areas with unified courts say that these courts have simplified court procedures, provide easy access to family justice services and produce outcomes tailored to individual needs. As well, courts across Canada, both unified and generalist, are implementing early intervention programs intended to reduce conflict and canvass opportunities for settlement.

Why, then, do systemic problems persist?

It doesn’t necessarily start with lawyers’ fees. Yes, lawyers are expensive, but contrary to the too-common view that lawyers foment conflict to line their own wallets, most family law lawyers would rather seek an informed, rational settlement than pursue litigation, despite its significant remunerative qualities. The cost of counsel largely results from the extraordinary basic cost of practice. Law society fees are compounded by insurance premiums, bar dues and other professional memberships. The cost of commercial office space typically exceeds the cost of housing a family, to which must be added the cost of staffing, bookkeeping, and IT services. The practice of law is expensive, and most family law lawyers earn a fraction of the income of their Big Law counterparts.

If improved funding for legal aid is not on the horizon – bar associations across the country have been chasing that particular squirrel around the tree without luck for decades – and the reduction of lawyers’ fees is unlikely, what else can be done?

First, we should encourage family law lawyers to take on more work on an unbundled basis. Critics will say that unbundling isn’t proper lawyering, pays poorly, and will invite a landslide of complaints before the law society. But the evidence points to high levels of satisfaction among both clients and lawyers. Clients say unbundled services are accessible and more affordable, and help them better understand the law and their options. Lawyers say much the same, and point to improved outcomes for clients.

Second, we should allow people other than lawyers to assist clients with legal problems, both in and out of court. We lucky few are privileged to hold a statutory monopoly on the provision of legal services. But this monopoly is incompatible with the unmet demand for the services only we offer. Somewhere in our entitlement lurks a quid pro quo that we have, at our peril, failed to meet. If we fail to address this, government will do it for us. As McCarthy Tétrault’s Matthew Peters put it at the 2018 BC Legal Innovation Forum: “If we are preventing innovation we are going to lose our social licence.”

I suspect this is the concern motivating a recent softening of positions on the part of the law societies of Ontario and British Columbia when it comes to non-lawyers offering legal services. The title of the recently amended Legal Professions Act in British Columbia – note the plural form of the noun – suggests likewise.

This is not to say that more affordable legal professionals should have a scope of practice equal to that of lawyers. They must be properly trained, insured, regulated and governed by a code of ethical conduct. The extent of their services should be developed with care, in consultation with government, the bench and bar, and must be commensurate with the level of training they receive.

What’s more, we must vigorously promote the resolution of family law disputes other than by litigation. Family law can no longer be treated as just another species of civil dispute, subject to the same rules and principles despite its special nature and many critical differences. We, as a modern, industrialized society, must put an end to the bizarre situation of spending the vast majority of our family justice dollars supporting the dispute resolution mechanism that is the least efficient, most time-consuming and most destructive to families and children. A miniscule fraction of this funding is devoted to family justice counsellors and mediation services, and, so far as I am aware, none to funding private mediation, collaborative negotiation and arbitration. Surely, the public purse would be better spent supporting processes that are child-centred, holistic, cooperative to the extent possible, and promote the capacity of family members living apart to resolve disagreements on their own.

In fact, we should consider removing family law matters from the courts altogether. These are disputes that could be moved into a specialized administrative system offering both adversarial and non-adversarial dispute resolution alongside: education on parenting after separation, child development and conflict management; social services providing parenting, housing and employment support; and financial and mental health counselling, parenting assessments and similar services. Such an administrative system should be interdisciplinary and explicitly aimed at promoting the well-being of children, reducing conflict and promoting parents’ ability to cooperate with each other. Its rules, policies and forms should be written in plain language and be tailored to the unique needs of families living apart; the rules of evidence and stare decisis should be simplified; and the extent of the adversarial and non-adversarial processes provided by the tribunal and the commission should be genuinely proportionate to the circumstances of each family, and the importance, complexity and value of the issues in each dispute.

I am glad to practise at a time when serious change is underway. However, I worry the present efforts, laudable as they are, may not shift the needle on some of the deeper structural problems affecting family justice.

Still, something must be done. The need is urgent and is only growing worse.