Law Times

Page 10 June 19, 2017 • Law Times www.lawtimesnews.com Brampton court speeds up family law matters BY MARG. BRUINEMAN For Law Times A Brampton courthouse, and its judges, is gain- ing some attention in the legal profession for its ability to cut to the chase in family law matters, resulting in faster and shorter trials. At 47 Sheppard Avenue, On- tario Court of Justice Family Court Justice Stanley Sherr and his colleagues hold Rule 1 hear- ings, and they rarely spend more than a day or two on a family court trial. "We spend an awful lot of time thinking about how we can reshape the self-represented liti- gant to fit us more easily rather than thinking of it the other way around," observes John-Paul Boyd, executive director of the Canadian Research Institute for Law and the Family, which is based at the University of Cal- gary. "When you look at court processes . . . the rules of court are generally interpreted in a very rigid manner that are ex- haustive of not only lawyers' and the system's time but also, corre- spondingly, clients' money and resources." The issues aren't in Alberta alone. Lawyers say many people involved in family law disputes show up at Ontario courts with- out a lawyer. This can slow court proceedings and raise access-to- justice issues. Some clients who are daunted by the prospect of a lengthy trial simply fold and agree to terms with which they are not really satisfied. To combat situations like this, there is the initiative at the Shep- pard Avenue Ontario Court of Justice. The concept is based on Rule 1 of Ontario's Family Law Rules, which require that justice be done expeditiously and fairly — a duty that falls to all involved: the court, counsel and litigants. Rule 1 or focused hearings minimize trial time by eliminat- ing extraneous information and focusing on what those involved haven't been able to resolve. Usu- ally, lawyers present the evidence through affidavit, although self- represented litigants may do it orally. And cross-examination is limited. While Sherr says the concept is nothing new and has been around for some time, he ac- knowledges that it is beginning to take hold by judges introduc- ing similar initiatives in other courtrooms across the country and that there is a recognition that perhaps focused hearings should be more readily available. The approach recognizes that the most painstaking procedure isn't always the best. "We have to find more cre- ative ways to resolve family law cases," says Sherr, adding that smaller jurisdictions more often follow the expedited model with the goal of a quick resolution. "What we do is drill down and say, 'What are the issues that are really in dispute here?'" Sherr says there's a "whole mix and match of different things that could be done" to cut down on time spent in hearings, by using affidavits, financial statements, oral questioning and time limits on oral questioning. The lawyers narrow the is- sues and determine what is truly in dispute and can't be resolved outside of the courtroom and they propose what the focused hearing will look like. They can create timelines and limit the number of witnesses. A family law trial based on the focused approach that takes a day or a day and a half could be scheduled within a matter of weeks, adds Sherr. That compares with the 15 or 16 months it might take for a conventional case to reach trial, with a settlement con- ference, trial management con- ference and assignment court. "So, they actually come to us with a trial plan," says Sherr. "And now they have a lawyer presenting the case, which really assists in getting the best evi- dence before the court." Earlier trial dates, he adds, lead to more resolutions. The closer the hearing is the more likely the chances are of reaching a resolution. So, an early court date will bring on settlements more quickly, he says, meaning the case doesn't linger for as long. Sherr says at least half of the scheduled Rule 1 hearings settle right away, so resolutions may result in as quickly as three or four weeks. He has also found efficiencies through the scheduling process. A case expected to take a day will be broken down into two after- noons, for example. If it settles prior to the hearing, Sherr says, he doesn't suddenly find himself with a full day to fill and can, therefore, handle more cases. "What judges are trying to do is make the best use of their time so that everyone can get heard in a timely, cost-effective way," he says. The Sheppard Avenue court- house is essentially Paula Mc- Girr's home base. The senior staff lawyer at Legal Aid Ontario and Osgoode Hall Law School child protection professor ap- preciates the impact trials have on those involved. McGirr says her focus is to resolve matters through negotia- tion, where possible, and going to trial only when necessary. "[I]'m trying to resolve mat- ters . . . through means other than having to have a trial, be- cause people do not win at a trial," says McGirr. "There's a strong focus up on 47 Sheppard in getting matters resolved justly in accordance with Rule 1 of the Family Law Rules." McGirr says it's a "lot easier" to get a court date at the Shep- pard Avenue courthouse. "It's usually said that 47 Shep- pard Family Court is the busiest family court in Ontario. I concur with that totally," she says. That's in part because the case man- agement system eliminates the problem of "litigation drift," she says, which is when the process veers off topic and is not kept in check, unnecessarily adding to the length of the trial. 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