On Nov. 19, 2018, Regional Senior Justice Peter Daley took an unprecedented step. Speaking to media, members of the profession and the public from the dais in the Brampton, Ont., courthouse, he addressed growing concerns over the backlog in his region’s courts.
“Regrettably, the Ontario government has failed and refused to live up to its responsibilities, despite being implored to do so countless times over many years by the Superior Court of Justice,” he said.
Quoting the Supreme Court of Canada, he went on to say that “the lack of institutional resources cannot be an excuse used by the Crown to deny an accused’s right to a timely trial. A similar argument may be made for families who are in crisis and desperately require the court’s intervention.”
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Two days later, on Nov. 21, 2018, Justice Clayton Conlan released a decision arising from a ten-day trial he heard in Milton, Ont.
Justice Conlan’s decision began with these words: “This proceeding has existed for 17 years. That is not a misprint. I repeat, this proceeding has been around for three years short of two decades.”
While Regional Senior Justice Daley and Justice Conlan have something in common (they each sit in the Central West judicial region of Ontario), the circumstances described by each last week are well known to many who attempt to access the family court system in Canada.
For readers who have managed to avoid our family justice system to date, statistics provide context.
In 2017, the former Chief Justice of the Ontario Provincial Court, the Honourable Annemarie Bonkalo, reported in the Family Legal Services Review report, that 57 per cent of people appearing in family court represented themselves. When asked why, the most common answer given was that the self-represented spouse could not afford to retain counsel.
In a recent study commissioned by the federal Department of Justice, the most common legal problem related to a relationship breakdown.
When cases come to court, certain matters must understandably be prioritized. In cases where an accused’s liberty is at stake, the Supreme Court of Canada has set timelines for when matters must be heard. Those criminal cases are given priority over other cases.
Except for child welfare cases, where children are taken from their homes and may become wards of the state, there are no similar timelines in family court.
Regional Senior Justice Daley explained the situation in Central West in plain terms. One in ten Ontario residents lives in Peel region, part of the Central West judicial region. It is the fifth-most populous region in Canada. While a new courthouse was built in 2000, it was almost too small to accommodate the cases it needed to hear when it opened.
As of Nov. 1, 2018 in Central West, the earliest hearing date that could be given for a family law motion that required more than an hour of court time was eight months away. When a judge hears a family motion, she or he makes a decision, pending trial, about things such as where a child lives, the child’s schedule with each parent, whether a spouse has an obligation to pay child support or spousal support and who can live in the home. Family dynamics and finances can be complex, and often require more than a half hour for each side to argue.
In Central West, a family law trial needing more than five days of court time cannot be heard for sixteen months.
A common response to the issue of delay in the family courts, is that separating spouses should simply be more reasonable; they should be able to agree on things as important as their children and money. This response is as unhelpful as it is uninformed.
Spouses separate for a reason.
One spouse may be fleeing domestic violence or financial abuse. Substance abuse is increasingly common, as is mental illness. If money is an issue, after separation, the same income now has to support two households instead of one. And even if the reason for separation has at its heart, a mere inability to communicate with the other spouse, it is foolhardy to think that inter-spousal communications improve after a separation.
In Central West, there are simply not enough courtrooms to accommodate all of the cases that require a hearing. Many other jurisdictions across Canada also have an insufficient number of judges to hear the cases that come before them in a timely way.
In every province in Canada, cases are taking longer; our laws have become significantly more complex.
Most provinces have little legal aid funding available for family law matters. More and more litigants represent themselves.
This creates another perfect storm: people without any legal training are trying to argue their own cases as laws have become increasingly complicated.
Self-represented litigants occupy more court time and place even more stress on an over-burdened system.
For readers who have never contemplated the effect of a self-represented litigant on the operation of the court system, it is worthwhile to share some of Justice Conlan’s observations of his recent trial.
It is assumed that a 17-year-old case will include the obvious problems of faded memories, lost records and dead witnesses.
But a self-represented litigant who has a very personal interest in the outcome of the case presents even more challenges.
Justice Conlan catalogued some of them as follows: “Frequent interruptions of others who are speaking…. Huffs and puffs from the counsel table while others are testifying. Sighs. Shaking of the head in disgust or disagreement. Verbal outbursts, while seated from the counsel table while others are testifying…. Crying. Complaining about not having enough time to prepare. Engaging in frequent lengthy diatribes with the Court…. Asking convoluted, incomprehensible, compound, disjointed and extremely lengthy questions in cross-examination, after receiving much assistance from the Court to try to avoid that. Getting bogged-down in the tiniest of details from eons ago…. Evidence in cross-examination that was long-winded, repetitive, and often delivered with a snarky and sharp tone, despite a concerted effort by counsel for the opposing party to be polite and straightforward…. Being late for court.”
Unsurprisingly, Justice Conlan described the ten-day trial as “an excruciating experience for everyone involved.”
A family relationship legal issue affects nearly 50 per cent of Canada’s population at some point in their lives. Without timely intervention, children go without support and the stability of a routine. Families remain in a cycle of conflict.
If we do not have an accessible justice system, we do a disservice to the families that need the most help after a relationship breakdown.
Surely we can do better.
Laurie H. Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto. [email protected]