Law Times

PAGE 12 FOCUS FEBRUARY 1, 2010 / LAW TIMES Lawyers debate merit of family law reforms BY ROBERT TODD Law Times "make family matters easier to resolve and more affordable," but lawyers remain unconvinced. A The announcement included prom- ises to offer more information up front to help families better understand the family law process, improve access to mediation services, and simplify cases that must go to court. Georgina Carson, chairwoman of the Ontario Bar Association's family law section, lauds the motives behind the government's announcement. In particular, she was glad to learn the government would expand mandato- ry information sessions to Brampton and Milton, a process that previously applied only in Toronto. But at the same time, she says the much-antici- pated announcement lacked "concrete deliverables," making it hard to deter- mine just what impact they will have on an ailing system. Meanwhile, she says the province's family courts struggle to provide access to justice due to wide disparities in judicial resources. "There's quite disparate services across the province and frankly [with] how every jurisdiction deals with family law," says Carson. "There are 16 or 17 unified Family Court sites across the province, whereas the other jurisdictions still have a bifurcated Superior Court level and ttorney General Chris Bentley believes the family law reforms he announced last month will provincial court level, which gets into all sorts of administrative as well as juris- dictional issues. And, frankly, having a unified Family Court would address a lot of those, and that's certainly not part of the minister's proposal." That stalemate on the creation of unified family courts is unlikely to end any time soon. Doing so requires involvement of the federal government, which has largely been silent on the issue. While the need for change typically rests upon an infusion of cash, Carson suggests simple and inexpensive solutions are at hand. She suggests the family law system would run more smoothly if the province rolled out a more extensive pub- lic education program. As well, she says the government could make more infor- mation available on its family law web sites, a move that would need to include a public awareness campaign advising people that the information is there. "There's a lot of misinformation about family law," says Carson. "That would be fairly inexpensive, getting it out there not just once people walk through the court- room door but in libraries and schools and community centres and public ad campaigns. They spend money advertis- ing other things, and certainly infor- mation about how to get appropriate information about family law would be a relatively inexpensive way of educat- ing the public and could go a long way to keep people out of the court system, hopefully, and get them into appropriate diversionary programs." But not everyone is convinced other one isn't, they're reluctant to go and attend mediation with legal aid because they figure legal aid's really the other side," he says. "So if you want an independent mediation service that's going to basically pick up cases and make the court more streamlined, you're going to save money because you'll need fewer judges and you'll need fewer resources to run the courts. Some of that money should be used to fund mediation and arbitration, and it's not. There's no provision for that at all." Tom Dart, past chairman of the While some say the government needs to boost funding to make a real differ- ence, Tom Dart calls the changes an important "mind shift." meaningful change can come without a significant funding boost. "It looks like the minister wants to try and help, but he's not prepared to put his money where his mouth is," says Joel Skapinker of Skapinker & Shapiro LLP. "That's the major problem." He says while it's fine for the prov- ince to promote solutions to family law issues outside of the courts, they won't be feasible if people can't afford them. He notes, for example, that legal aid funds litigation but doesn't pay for mediation services aside from its own service it provides for a fee. "If one side's on legal aid and the OBA's family law section and secretary of the Ontario Association for Family Mediation, says he had been working for more than a year with the province on the types of changes Bentley unveiled. He calls them a major breakthrough and a "mind shift," especially given the acceptance that there are alternatives to taking family law matters to court. "Normally, people think [that] to get any kind of justice, they need to go to court, and I think for the vast majority of people that are separated, that's probably not true. They can get a negotiated settlement that's probably as good as anything, or better sometimes, than they could get in court." At the same time, Dart argues that while the shift to mediation and col- laborative law may seem unfamiliar to some people, it's necessary in light of the current strain placed on court resources. "You just can't get a dispute through the court system very quickly," he says. 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• Cover
• Boycott Ends
• Judicial Retirement
• Focus On Family Law/Trusts and Estates