A Renewed Emphasis in Family Law Cases
Family law reform is underway in Ontario. Reform of “the way we do things” that is.
Normally, when parties separate, they turn to the court system if they are unable to negotiate an agreement themselves with respect to the many issues which they may face. Often, they consult a lawyer whose main emphasis is to bring the matter to court or threaten court if negotiations are not going well. For many years, most family law professionals have understood that the adversarial system represented by the Court is not the best system to deal with the sensitive, emotionally charged issues surrounding the trauma of separation. Even when people go to court they most often do not end up actually having a trial, as more than 90% of cases settle before trial. We often wonder why does it take people that long to come to an agreement? To that question there is no easy answer, but we certainly know that when they get that far along in the process, the parties have spent tens of thousands of dollars, dollars which they cannot really afford.
Several years ago, Alf Mamo, a prominent lawyer from London, Ontario, was commissioned by the Provincial Government to study the family court system and to make recommendations specifically around Family Court. Alf’s report was submitted to the Government and then nothing happened.
Last November, the Ontario Bar Association’s Family Law Section, the ADR Institute of Ontario, and the Ontario Association for Family Mediation along with several other professional groups including the Collaborative Lawyers Association for Ontario, put together a program in an effort to flesh out and examine practical ways of dealing with the issues set out in the “Mamo Report” as it has come to be known. I was honoured to be one of the co-chairs of the program which was held during November 2009. We gathered together about 120 people for two days of workshops and asked the groups to examine how the system could be improved and to make recommendations that would be embodied in a report to the Provincial Government. The attendees were from a variety of different professional groups – lawyers, mental health professionals, members of the judiciary, members of the public who had experienced first-hand the workings of the existing system, professionals within the various ministries of government who deal with family court issues on a regular basis, representatives of different cultural and academic groups, law professors, and anyone who had an interest in process reform.
The results were rather surprising in several senses: First almost all groups agreed that for the vast majority of cases involving family breakdown, the adversarial system was not the best system. Secondly, the provincial government under the Attorney General’s leadership, took a very active interest in the process and promised to implement the recommendations if that could be done within the confines of provincial budgets. Third, although not very surprising, the recommendations which came out of the workshops were excellent. What was surprising is how well they were received. Now the provincial government is trying to implement family law process reform across the province and many of the recommendations are being seriously considered.
What does all this have to do with mediation and arbitration? Well, the answer is fairly simple: Almost all groups recognize the advantages of mediation. If done properly, mediation can protect the parties’ interests while at the same time saving them tremendous expense both in terms of money and in terms of emotional trauma. Mediation affords people the opportunity of dealing with their emotions while at the same time rationally handling the financial and child related issues involved in every separation.
As importantly, other approaches to dispute resolution such as collaborative law are being recognized as excellent methods of achieving agreement through empowerment.
The provincial government is now dedicated to providing separating couples with information and advice on how best to handle their specific issues – information leading to a better method. Providing people with information and with knowledge is the key to breaking down the automatic adversarial system.
While there will always be cases and couples who need to go to court to have their issues resolved, the vast majority of couples who do turn to court and don’t need to may now be given that information and may now begin to approach their problems in a much less adversarial manner, which can only bode well for the children who also must live through the breakdown of their families.
To learn more about how mediation and other methods of resolving the issues surrounding your separation can help lessen the financial and emotional impact upon you, please contact our office and we will be pleased to provide all the information you need.