Family court in crisis

Dec 09, 2007 04:30 AM

Staff Reporter

Rehana Sumar stands in the basement of her family’s home among the documents detailing the legal battle surrounding her sister Siddika’s divorce.


The Sumar family once believed in justice in Ontario.

That was before middle daughter Siddika went to family court in Newmarket seeking a divorce and support settlement for herself and her 6-year-old son. Three years and a stunning $256,963.13 later in court costs, she could be a poster child for the breakdown in family law in much of the province.

"We naively thought if we did everything according to the law, we'd get justice in a timely manner, but we were wrong," says Rehana Sumar, of her sister's still-unresolved case. "We've lost three years of our lives and we don't expect to recover. We endure."

The biggest problem is a lack of family court judges in Ontario – the courts that deal with some of the province's most vulnerable, notably our children.

While legal experts blame the federal government for not keeping up with judicial appointments and failing to recognize the need for even more judges in rapidly growing areas, others say the province must take some responsibility for difficulties in areas under its jurisdiction, such as the office that ensures court orders are carried out.

Conservative MPP Frank Klees (Newmarket-Aurora) says Queen's Park isn't doing an efficient job of administering the courts.

"It's clear to me it simply is not a priority for either government," he says. "I have seen nothing from the provincial government except the refrain; `It's all the feds' fault.'"

Rehana Sumar throws up her hands: "I don't care whose responsibility it is. We just want somebody to fix the problem."

Since 2004, the Sumar family has gone to court in Newmarket on 11 occasions, only to be told there was no judge to hear the case, or it had to be adjourned to a later date because the judge was too busy.

Meanwhile, ka-ching, ka-ching, legal costs kept mounting at $175 to $250 an hour, the norm in York Region. (In Toronto, family law rates are $300 to $400 an hour.)

Rehana, who runs a homeless shelter in York Region, calculates each missed court date cost her family an average of $5,000: $4,000 for her lawyer ($250 x 16 hours for the court and preparation days), and $1,000 for his assistant ($200 x 5 hours.) Multiply that by 11, and $55,000 is directly attributable to the shortage of judges.

"The whole point of the justice system is they can make the decisions for you," says Rehana. "But they aren't judging."

Ontario Attorney General Chris Bentley acknowledges Ontario must shoulder some of the blame, but told the Star: "The No. 1 issue we face in the family area is that the federal government appoints Superior Court judges – we don't – and we have been short Superior Court judges for a number of years."

He said the problem appeared to be solved in 2004 when the former Liberal federal government agreed to a 12-judge increase, but it was defeated before that happened.

"The present (Conservative) government has never put resources into judicial areas," says Toronto lawyer Philip Epstein, who is with the country's largest family law firm, Epstein Cole. "They have a warped view of how judges work."

Federal Justice Minister Rob Nicholson was unavailable for an interview. In an email to the Star, his spokesperson cited the recent introduction of legislation to appoint 20 judges across Canada as an example of the "leadership" the government is taking to address concerns about First Nations' claims and backlogs within superior trial courts.

An official added it's "premature" to speculate on where the judges are going, but Ontario lawyers insist the province needs at least 12.

Part of the problem is Ontario's complex family court system.

About 60 per cent of the province – including the sprawling judicial area of Central East, which includes York Region – has a unified family court, with all judges appointed by Ottawa. The rest have split jurisdictions, with the Ontario Court of Justice and the Ontario Superior Court both hearing family law cases, although property matters go to federally appointed judges, while the provincial system handles child protection cases.

There are two issues with the judge shortage: filling the existing complement of Superior Court judges (there are nine vacancies); and increasing it to keep up with a population that is exploding, particularly in regions like York, with its municipalities of Newmarket, Richmond Hill, Vaughan, King, Aurora and Markham, among others.

These municipalities are all in Central East, where the 2.3 million population almost mirrors Toronto's 2.6 million, and is expected to soon surpass it. Toronto, a split jurisdiction that works "amazingly well," according to Epstein, has a complement of 96 Superior Court judges. Central East only has 37.

Municipalities are straining. When the unified family court opened in Newmarket in 1999, "it soon became apparent the caseload ... exceeded the capacity of the judicial roster to manage it," George van Hoogenhuize, chair of the York Region family law committee, wrote in 2006. He tabulated statistics showing the strain on Newmarket, which, along with other municipalities, depends on York Region's four family court judges. York's population has grown by more than 200,000 since 1999, but no family court judges have been added.

It's not uncommon for a Newmarket judge to have 80 cases lined up on motion day, while a Toronto judge handles a maximum of eight.

The court "has now reached a crisis in which it is so overwhelmed it is not able to meet the demands," Van Hoogenhuize wrote, calling the delays and adjournments "a vicious circle." He concluded: "It is not reasonable to expect that any amount of tinkering will relieve the existing situation. ... It is vital that the federal and provincial governments give these issues their highest priority."

Newmarket family court lawyer Charles Baker says lawyers are just "muddling through." Of his clients, he says grimly: "They suffer."

Last January, Heather Smith, chief justice of the Ontario Superior Court of Justice, said more family court judges are "desperately needed" if children at risk and families were going to receive "timely access to justice." She, too, appealed for 12 additional appointments.

Heather McGee, former president of the Ontario Bar Association, calls federal inaction in appointing more judges "inconsistent with Stephen Harper's law-and-order agenda."

"Family law doesn't get the consideration it deserves," says Clive Algie, president of the York Regional Law Association. "It's not sexy and high-profile like criminal law or big money like development and contract issues."

As a result, he said "important issues of custody, access and child support are being delayed for months because of a lack of courtrooms and judges ... litigants are being bled to death financially ... Families must have access to the courts. Judges must be appointed."

The unified family courts, introduced in 1977 in Hamilton, were supposed to improve the system by, among other goals, creating a dedicated roster of judges.

Instead, in Central East, judges are driving hours a day and still can't hear all the cases. Says McGee: "For us, it's not a lawyers' issue. We can't get our clients into court."

In 2005, the Carleton Law Association blew the whistle on the "crisis" in the unified family court system in the Ottawa region, while Barrie, North Bay and Sudbury all have serious problems.

Moreover, for the first time since Confederation, Kenora – a district the size of France – hasn't had a Superior Court judge in over a year.

Meanwhile, interminable delays hit people when they are most vulnerable, emotionally and financially, trying to take back their lives and deal with custody issues, child support and, often, the time-consuming conflicting version of events.

In Newmarket Court last Wednesday – a rare good day with three family court judges on hand – Judge Sherrill Rogers heard a couple argue, through their lawyers, for 30 minutes about the husband throwing a coffee cup at the wall, or at his wife, when he found her in bed with another man in the matrimonial home.

As difficult as life has been for the Sumars, they've been able to pay their court costs. (Of their total bills, roughly $190,000 are legal costs, with the rest divided among accountants, investigators, mediators and other expenses.) Architect father Mohamed and mother Shirin, Rehana, 38, and Sukaina, 40, all chipped in to help Siddika, 39.

Many families can't pay for lawyers, and Legal Aid is strapped. In 1995, the federal government cut off family and poverty legal aid totalling $18 million annually.

Sharon Villani, a mother of two teenage boys who has been going to court in Newmarket for two years following the breakup of her marriage, had to let her lawyer go this fall.

Although she struggled with two jobs to pay $20,000, Villani has reached her limit and is struggling to be her own lawyer.

"I spent so much money and it still isn't settled," she says. "Do I keep going or do I walk away? That's the question I've been asking myself the whole time. Is it even worth it?"