Last Updated: September 26, 2010 2:00am
Ontario Chief Justice Warren recently recommended “dramatic” changes to the family law justice system that would deny litigants access to the courts if they didn’t go through mediation or arbitration first.
“(O)nly in the event that the alternative dispute resolution process is unsuccessful would access to the costly, time-consuming, adversarial and sometimes acrimonious court process be available to litigants” Justice Winkler said earlier this month in a speech marking the opening of Ontario courts for the current session.
Apparently fine-tuning the system is of little value and a new approach, “a fresh conceptual approach,” is required.
But a report on family law by the Law Commission of Ontario questioned the effectiveness of mediation. It’s no big surprise that our family justice system was found to be lacking, indeed the title of the report refers to our “Broken Family Justice System.”
Apparently mediation isn’t a cure for what ails the system. Mediation only works when both sides want it to work. Of course, mediation can be expensive and not all mediators are effective.
Instead of more mediation, we need to deal with the high costs of litigation by lowering fees and providing more money to lower-income litigants. Flexible payment plans would also be nice.
So what’s the answer: More mediation, more money or dealing with the high costs of litigation? What if it’s none of the above?
If we recognize that the current system is costly, time-consuming and often acrimonious, why don’t we come to the obvious conclusion? Perhaps we need to blow up the system and build a new, improved system from the ground up. What better place to start than with our cherished adversarial system?
What is the elephant in the room common in both the Justice Winkler and LCO report?
It’s the adversarial system which pits spouse against spouse, often with the help of lawyers. Both proposals attempt to remedy the problems of our sacred cow, the adversarial system.
Let’s face it. Our adversarial system of justice is costly and time-consuming. Spouses become adversaries even if they don’t start out that way. It encourages acrimony.
It works best when both sides have equal resources, but that is often not the case. The search for justice, fairness or the truth is often subsumed in gamesmanship, with a win-at-all-costs attitude.
Extreme positions are taken. It doesn’t have to be that way, but human nature seems to make it so.
In many cases litigants can ill afford their lawyers. Money that could be used to better support children or a deserving spouse is wasted on lawyers. Many litigants become self-represented and that creates its own set of problems.
Instead of tinkering with the status quo, why not blow up the current system and design a new system, a non-adversarial system that limits the role of lawyers?
Perhaps we’re afraid of even thinking about designing a more intelligent system dealing with family law disputes. It might lead to an understanding of why we should also be thinking about redesigning the current model used to resolve personal injury disputes and perhaps even employment law disputes.
At the same time, we need to look at what motivates, and eliminate the worst excesses in family law litigants’ behaviour. False accusations of abuse, denial of access, hiding assets, bullying and other abuses must be eliminated by instituting real and timely remedies.
I know it won’t be easy and it certainly won’t be popular. Many have a vested financial interest in retaining the current adversarial system with all of its warts.
But if the best we can come up with is the “dramatic” change of a more alternate dispute resolution, or throwing more money and resources at the problem, then why bother?
IF, Winkler wanted to end litigation, he could simply support legislation for
a Legal Presumption of Equal Parenting. Its the failure of parliament and
society to have such a legal presumption that creates all the incentives for
mothers to treat children as possessions rather than human beings who have a
right to an equal relationship with both parents.
While Ontario and Canada has a process Male Gender Apartheid where fathers
have virtually no legal rights, there is little point in going to court.
Our Ontario Superior Court is riddled with corrupt judges who make decisions on order for their friends. The worst place in Ontario is Ottawa where they hold hearings under the most dubious of circumstances and make orders that literally tear up other orders made by other judges, that is, an appeal when you are not having an appeal, if you get a decision you don't like, just get a lawyer with a contact in the judiciary such as Allan Sheffield, Denis Power and Ratushny and Robertson who sends men to jail on the slightest excuse.