Below is an opinion piece written by Tom Dart, Partner at Barriston Law, about his experience with the Family Law Court System. This thoughtful article recounts how Family Court in Ontario has changed over the past 45 years and advocates for a better system moving forward.
Way back in 1976, when I was called to the Bar and began practising in Barrie Ontario, the Supreme Court sat only in Toronto. The Supreme Court Judges went on circuit from time to time and came to Barrie to decide cases which were set for trial. We could also commence an Application in the Superior Court in Toronto if we thought it would benefit our clients. My first attendance at an Application taught me the benefits of case conferences in family law matters.
The Application procedure still exists today. In family law cases back in the late 1970’s, we would use this procedure to claim relief for property division, support and deal with parenting issues. We would prepare the Application and supporting affidavits and always ask for interim relief as part of the Application. On the first appearance, the judge would attempt to mediate the issues with counsel but if no agreement could be reached, the judge would make a temporary order immediately based on the affidavit material. This would usually set the stage for the case. There would then be cross examinations on the affidavits and the matter would proceed usually to settlement.
As time went by, County Court judges were granted jurisdiction in Supreme Court to conduct divorces and decide corollary relief issues. Then in 1990, the courts merged and we had Superior Court in our jurisdiction with no more need to head to Toronto. We also lost the case conference.
In 1995, Simcoe County was fortunate to be one of the first jurisdictions to which the Unified Family Court was extended. Two judges were assigned to the court. Family judges from outside our jurisdiction, usually Hamilton, came into the court when either of the two were on vacation or overwhelmed with cases. Rarely did we have a judge who did not have a family law appointment or background. The two judges had control over their own courtrooms and could schedule their own trials. The system was vertical as it is in most jurisdictions in the United States, that is, one judge would handle the case up to the point of trial at which point the other judge would handle the trial. They divided the case list based upon the last number of the court file with one judge taking the even-numbered cases and the other taking the odd numbered cases. We were back to case management. Although we were not able to obtain substantive orders for temporary relief on the first appearance, we were able to obtain an early date for a motion and temporary orders were granted fairly quickly after the first appearance. I recall commencing one Application in January and having the trial in June of the same year. The efficiency of the court was overwhelming. Mediation services were available but seldom used as the judges were skilled in that field as well and frequently were able to obtain settlements at the settlement conference stage. You never left one court date without having another date scheduled, a date where you had to report to the case management judge on the progress of your case and a date at which orders could be made to move the matter forward.
Then roughly in the year 2000, the government expanded the Unified Family Court to all of Central East region and several other jurisdictions. I naturally thought that the court would continue to be stocked with specialized family law judges and that the vertical system including the case conference as established by the two Judges in Simcoe County would continue. I could not imagine someone not implementing the benefits of what we had throughout the Region. I was mistaken. Although family law judges were assigned to the court, there were too many cases throughout the region and not enough family law judges. Therefore, from time to time, a judge with no previous family law experience would be assigned to the court. That continues to this day. In fact, judges with no previous family law experience are still trying family law cases.
The case conference system still continues but the system is no longer vertical. It is now horizontal meaning that numerous judges will touch the file before the case is eventually tried. Given the fact that family law by itself gives tremendous discretion to a judge, we often get different opinions about the case from different judges. In the old system, we had a case conference, a settlement conference and then a trial. Now we have a case conference usually several months after the application has been served during which time no motion can be brought, then a settlement conference, then a trial scheduling conference, then a trial management conference, and then, when the case is on a list for trial, there is usually another effort to settle the case through what is called an exit pretrial and then finally, the trial. Each of these conference steps in a case cost a client roughly $5000 if they are represented. In other words, a client can expect to spend close to $30,000 before they get to a trial and, if no motion is brought, no relief. Unfortunately, HST is charged on legal fees so we can begin to understand why people can no longer afford lawyers to act for them at their trial. If a party needs to bring a motion to get some temporary relief pending the trial, the motion usually costs in the range of anywhere between $5000 and $20,000 depending on the complexity of the motion. Hence, the parties have to think seriously about bringing a motion.
I do have some suggestions as I want to be positive and instigate positive change if at all possible. I appreciate that I am one voice, perhaps blowing in the wind as one famous songwriter once penned, but here they are:
My hope is that someday, we will look back at the history of the case conference as described above and bring back the good parts. Let us have a vertical system once again. Let us allow judges to make temporary orders right at the very start of the case at the first case conference. Let us establish a system where judges are trained to be mediators and only those judges handle conferences and settlement conferences. This means that we also do need to establish some form of screening for domestic violence so that people who come into the court system with a tragic background are protected. This means judges who want to do conferences have to learn how to do domestic violence screening. The judges who do not want to be mediators should be the triers of fact and should not have any involvement in conferences prior to the trial date. Let us let the judges have control of their own scheduling and their own courtrooms so that efficiencies can be developed. Let us focus specialized judges and court rooms exclusively on family law cases only. Let us adapt the same attitude as the Ontario Court of Justice does with respect to criminal law cases – that is specialization and judges controlling their calendar. Let us look at the private field where mediation/arbitration is prevalent and adapt the best procedures from that process. Let us implement change now – let’s make the system efficient and cost effective. Let’s work together to do that – Judges, administration, lawyers and the public should all be involved. Let’s build a system which the people want. Let’s remember that we all serve the public, so let’s make the public interest our priority.
-Tom Dart, Partner