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Adela Rodriguez & Jennifer Wright Acting Art Director . . . . . . . . . . . . . . . Steve Maver Production Co-ordinator . . . . . . .Sharlane Burgess Electronic Production Specialist . . . Derek Welford Law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com LT.Editor@thomsonreuters.com • @lawtimes u EDITORIAL OBITER By Gabrielle Giroday Family court review may bring overdue relief I t's no secret Ontario's family law courts are in need of fixing. So there are a lot of hopes riding on the attorney general's commis- sioning of a review by the Law Society of Upper Canada and Justice Annemarie E. Bonkalo into whether allowing non-law- yers to provide services will improve the efficiency of the system and, by exten- sion, reduce some of the angst and heated emotion that come with the dockets. The question is, what took them so long? We've struggled for a decade or more because 50 to 70 per cent of par- ties in family court can't afford a lawyer and are self-represented and it's causing havoc. Those who have counsel tend to be high-income earners or have such low incomes they qualify for legal aid. That leaves a massive cohort of litigants who have no counsel, no understanding of the process, and little capacity to even fill out the required forms. The process is jammed while stake- holders patiently try to explain things to those unrepresented participants. Further, cases involving unrepresent- ed parties tend to take longer and involve more court time and are harder to settle out of court. Family court isn't a happy place. It's emotionally charged and adding to that frustration is the process itself. It doesn't help when the way things are set up prolongs the agony. We've studied this to death. From 2009-13, the Law Commission of Ontario looked at other jurisdictions in both Canada and the United States and came up with some plausible ideas, many of which seem to form the basis of Bonkalo's man- date. Commendably, there are other efforts in the works. In appointing Ottawa-Vanier MPP Madeleine Meilleur as attorney general in 2014, Premier Kathleen Wynne in- cluded a brief in her mandate letter to "identify ways to triage cases at the initial stages." Meilleur reported the need "to streamline the court process to address the needs of litigants before and during the court process." This will take the form of "two triage models" which will run concurrently with Bonkalo's review by the AG's Family Justice Table. Two pilots are set to launch this year and the first requires a "triage" in which prospective Family Court litigants meet with a professional and where options such as dispute resolution are explained. The other is a two-step process, start- ing with the initiating party who will be screened and triaged. A notice will then be sent to the respondent to attend. After those meetings are completed, the parties will be referred to legal and non-legal supports and a dis- pute resolution option will be recommended. In the event of emergency or concerns over safety the matter goes straight into the court process. If the parties proceed to mediation and resolve their issues, they will be referred for independ- ent legal advice and lawyers will prepare the agreement. If they are unable to reach resolution on some or all issues, they will be referred to the court system, but may be fast-tracked to a motion (if necessary) or a settlement conference, provided the alternative dispute resolution practition- er certifies they are ready for one. As helpful as it might be, it still doesn't seem to resolve the issue of affordability. Opening up the family courts to quali- fied non-lawyers seems more prudent, though there are concerns when it comes to self-represented parties going up against a party with counsel if non-law- yers act in court directly. The process runs on filings and as Jim Canie, co-founder of the grassroots group Canadians For Family Law Re- form, notes, the average person is gob- smacked on initial introduction to the family courts and is disadvantaged at every turn. "I'm skeptical, but hopeful, I guess," he says of the review. He hopes the review pushes into other areas such as better leveraging technol- ogy, something the courts have been slow to do. The 2013 LCO report maps out the obvious options such as law students or paralegals assigned from a pool either to work directly with a party or to work under a lawyer's supervision. Having those familiar with tax law for a defined f lat fee might also be of assistance in many cases involving pensions and in- vestments. After all the reports, reviews, and dis- cussion, it's about time this government took some action. It may not grab headlines like carbon cap and trade scheme and it's a lot less glamorous than jetting off to Paris but it's the nuts and bolts of running a province. LT uIan Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. Queen's Park Ian Harvey A challenging question Law Times reports this week the federal government is looking at the possibility of bringing back the Court Challenges Program. The storied program — founded in 1978 by the Trudeau One gov- ernment — provided funding for people or groups to challenge laws they believed violated equality or official language minority rights. The program provided funding for more than 1,000 cases, some of which resulted in major rulings. But in 2006, soon after Stephen Harper became prime minister, the program was scrapped. The rationale presented by Harper's government was an econom- ic one. "The court challenges program did not provide good value for the hard-earned money of Canadians," a federal spokesman told media. News the program could be restored by Trudeau Two is significant for those who have been waiting, and hoping, for the program's return. Last year, Sarah Lugtig, chairwoman of the Canadian Bar Associa- tion's standing committee for access to justice, told Law Times: "The Canadian Bar Association was a longtime supporter of the Court Challenges Program, has always supported it, and has seen it as a fun- damental institution in Canadian democracy." No prevaricating language there. The program goes to the heart of what each Canadian believes the purpose of their government is. For those who are opposed to "activist" governments, the program is a prominent example of taxpayer-fund- ed advocacy by special interest groups. The rapid chop of the program was only one way the Harper government indicated its disinterest with funding these endeavours. For those who are interested in economically sup- porting these challenges, the reintroduction of the program could have significant trickle-down effects. Voters put Trudeau Two into office, arguably as a rejection of what could be perceived to be a nar- rowing of public dialogue. Trudeau Two's assertive move to restore the pro- gram indicates he's not afraid to take a page from his father, and put some economic support behind the values he espoused on the campaign trail. LT

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