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June 27, 2011

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Law Times • June 27, 2011 NEWS PAGE 5 Family law reforms fall short, Winkler says Chief justice calls for more radical change to Ontario's courts BY MICHAEL McKIERNAN Law Times radical change needed to mend a broken system, according to Ontario's top judge. Attorney General Chris T Bentley's so-called Four Pillars of Family Law proposals are currently rolling out across the province after pilot projects in Milton and Brampton, Ont., but Ontario Chief Justice War- ren Winkler told an audience at the Law Society of Upper Canada's family law summit in Toronto last week that they don't go far enough. "Th e attorney general has done some very good things," Winkler said in his keynote address on June 17. "Where I part company is that I'm committed to the notion that we need more fundamental change. We have to go back to the architect and the planners with a white piece of paper and start over and put something together that gives us a fresh look at this." According to Winkler, a two-tier system has developed under the current regime in which those who can aff ord representation are beginning to opt out altogether and those who can't do so struggle on, often without suffi cient le- gal help. In Winkler's view, there's no problem with people bypassing the justice system when it's for reasons such as confi dential- ity. But he doesn't think that's what's behind the current trend towards the faster and more ex- pensive option of private me- diation as a preferred method of settlement. "I have a problem when they go outside the system be- cause the system doesn't deliver the product they're entitled to. I don't blame them. I blame us in the justice system. It's our fault if we force people out of the system because we're not doing what we're supposed to do. "Th e system isn't delivering. I say this with some hesitation, but it seems to me that may- be the public and the bar are ahead of the curve and that the justice system and those who administer it may be behind the curve." Bentley, who also spoke at the conference, acknowledged that family law reform wasn't his top priority when he took offi ce in 2007. "It might be fair to say it wasn't on my initia- tives list," he said. But growing public dissatis- faction with the family justice system put it fi rmly on his ra- dar. By the end of this summer, the reforms will be close to being in place across Ontario, Bentley noted. "I wouldn't say everybody who needs representation today he provincial govern- ment's family law re- forms stop short of the is out of his hands since he'd need to get the backing of the federal government. "Between now and then, the reforms I have spoken about are going to make a huge dif- ference to clients coming to court and will in fact provide not all but much of what is so attractive about a unifi ed court. Many of the front-end services, the access to mediation, the ac- cess to lawyers, that is what is so attractive about the unifi ed model." Warren Winkler has got it but I would say if you compare where we are today with where we were in 2007, there is real substantial prog- ress on virtually every front. My commitment is to continue working with you to make that progress. We're not fi nished the journey but we're on a journey. Four years ago, there was no journey." Mandatory information programs designed to introduce potential litigants to the eff ects of separation and their dispute- resolution options are now in operation in most courthouses led by local lawyers on a volun- teer basis. Litigants at all court- houses will also have free access to limited on-site mediation, as well as off -site mediators work- ing on a sliding scale based on income. Th ose services were previously available only at the province's 17 Family Court lo- cations. Despite that increased ac- cess, Winkler said his vision for family law places free me- diation right at the heart of the system. He believes litiga- tion should be reserved for those cases where there's abuse, an imbalance of power or an unco-operative party, all situa- tions that make mediation an unsuitable option. "In almost every family law dispute where there are chil- dren, there's going to be an on- going relationship, and to me that means the parties have to be part of crafting or fashion- ing the solution," he said. "If they're part of crafting or fash- ioning the solution, there's a greater likelihood they'll abide by it." At the moment, Winkler said it's too easy to manipulate adversarial proceedings through delays and distractions. "Access to a justice system does not necessarily equate with access to justice. A lot of people see access to the system as a way to make the other person's life miserable because they use the system." Winkler said his ideas would be much easier to implement if there were unifi ed fam- ily courts all over the province rather than just at the 17 cur- rent locations. But Bentley said that while he'd like to go ahead with it, expansion of the unifi ed court Untitled-10 1 6/7/11 1:34:38 PM 1 888 836-9786 terryfox.org TerryFox_LT_June27_11.indd 1 www.lawtimesnews.com 6/24/11 9:38:04 AM

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