Province’s family court system ‘broken’



Judge shortage a ‘crisis’



By Tim Naumetz | Publication Date: Monday, 31 March 2008

OTTAWA — Family court lawyers are stunned at learning how the
government and opposition MPs recently rushed a bill through the House
of Commons that touches the heart of Canada’s justice system — the
courts.



“What’s more fundamental to our system, our democracy, than access
to justice? Without that system, we really have anarchy,” says Alfred
Mamo.

They say the Harper government, with the opposition turning a
blind eye, has no interest in addressing a “crisis” that grips family
courts in particular, especially in Ontario.



But Liberal Senator George Baker tells Law Times the Senate will
give the bill the attention it deserves and could take “months”
debating it and hearing witnesses in the Senate’s legal and
constitutional affairs committee.



The bill, C-31, proposes to add a modest total of 20 judges to
federally appointed superior courts, to be allotted among all 10
provinces and the territories. It is not even a drop in the bucket
compared to the existing complement of 984 judges in the superior
courts, lawyers say.



Unlike a 2005 Liberal bill that would have specifically added 27
new family court judges, the Conservative legislation does not mention
the family court system, and instead designates seven of the 20 new
bench positions for a tribunal the government is establishing to settle
long-standing aboriginal land claims.



That leaves only 13 new judicial posts for a system already bursting at the seams, especially in Ontario.

The bill received only one hour of debate as it sailed through the Commons in January.



By the time the House rocketed it to the Senate on March 14, it had
received only one hour of study by the Commons justice committee. The
only witnesses were from the government: Justice Minister Rob
Nicholson, Catherine McKinnon, the department’s counsel for judicial
affairs, Judith Bell, another counsel for judicial affairs, and David
Near, judicial affairs adviser.



To the disappointment of Alfred Mamo, a London, Ont. lawyer who
led an exhaustive study last year into Ontario’s family courts, the
bill has no specific provision to designate any of the judges for
family court.

Mamo’s report, still under consideration by Attorney General Chris
Bentley, calls on the provincial and federal governments and Ontario’s
chief justices to hammer out an “immediate crisis-management plan” to
address the judicial shortage in family court.



Mamo tells Law Times the shortage is especially acute and family
courts are “crucially under-resourced” in the swelling urban centres
that stretch from Oshawa-Whitby to Barrie, and adds Ottawa alone
requires at least three to four additional judges for its Family Court.



He says the shortage is creating a two-tier system — with many
parents choosing the costly alternative of private mediation and
arbitration instead of the public court system — because of the delay
in settling in front of a judge.



“A lot of cases are settling, not because they think it is a just
result, not because they think it’s a provident resolution of the
issues, but simply to get it done; they just can’t continue to fester
in the system,” Mamo says.



“What’s happening is people are going to senior practitioners who
will charge $250, $400, $500 an hour to do mediation,” he says. “The
courts are an institution of justice,” he says. “Access to justice
means access to justice that’s meaningful, without delay, with the
least amount of costs and with judges who are knowledgeable sitting on
the bench.”



Estranged parents who can’t afford those rates must stay in court
by relying on legal aid or representing themselves, which clogs the
court even more as judges take time to assist clients who represent
themselves.

Gerald Yemensky, a family lawyer in Ottawa who specializes in
mediation, agrees the family court system is in desperate need of the
kind of attention the federal bill failed to devote to it.



“I can tell you that the system is broken,” Yemensky tells Law Times.

He says it can take estranged parents up to six weeks just to reach the stage of a case conference in Ottawa.



“If you had a relatively urgent situation, say for example that
someone has left with the kids but they’re still in town, they’re just
not letting the other parent see them, it could be two to three months
at a minimum before that issue was addressed, before you reach the
judge,” he says. “To get to a trial, it could take at least a couple of
years.”



Mamo says he is perplexed by the speed at which the judge bill
sailed through the Commons, and he questions why the government did not
seek advice about determining how the judicial complement should be
increased.



“Everyone’s afraid of crunching the numbers, and I’m not sure why,”
he says. “What’s more fundamental to our system, our democracy, than
access to justice? Without that system, we really have anarchy.”

He says the government has failed to come to the aid of those who need it most — the children of broken marriages.



“The reality is when you look at the number of children that come
from separated families, and they’re innocents in all of this, we need
to have a system that is good for them, and their parents need to have
a way of resolving issues,” he says.



Baker tells Law Times senators are wary when they receive
legislation that is rushed through the Commons with no scrutiny, adding
the Senate legal and constitutional affairs committee will likely
invite all provincial attorneys general to hearings, and “anyone else
who wants to come.”



Mamo says he believes the federal government ignored family court
because of arch-conservative elements in Prime Minister Stephen
Harper’s party who do not want to promote divorce.



“They really have no interest in promoting the family [court]
agenda. It’s pretty obvious,” he says. “They want what they call the
‘traditional intact family,’” he says.

“But you can’t ignore [divorce], it’s a reality of the 21st century.”

province's family law ............
TORONTO — There is a large appetite for the review and reform of Ontario's family courts....
Currently, there are only 17 "unified," or dedicated family courts scattered in various pockets of Ontario. None are located in Toronto.
"The time has arrived to implement a properly serviced unified family court system,"Winkler said a ceremony to mark the official opening of Ontario's courts for the year.
Winkler's comments were echoed Tuesday by the top judges in Ontario's lower courts.
Chief provincial court Justice Annemarie Bonkalo said judges are faced with handling a high volume of child protection, custody and support cases, and an increasing number of people who don't have a lawyer, meaning judges are forced to spend valuable court time giving basic advice and help.
"... like Chief Justice Winkler, I worry that our courts might not always be able to meet the challenge," said Bonkalo, adding that she supports Winkler's call for a family law review.
"Coming to a just decision is much, much harder when litigants are on their own in court."
Across Ontario, the need for strengthening the province's family law system is at "the tip of everyone's tongue," Attorney General Chris Bentley said after Tuesday's speeches.
The province last month pledged to review the handling of child custody cases following the death of seven-year-old Katelynn Sampson of Toronto, who was permitted to stay in the care of a woman who had a criminal record for drugs, prostitution and violence. The girl's caregiver, Donna Irving, is charged with second-degree murder.
But Bentley blamed some of the challenges caused by delays in the system to a long-standing shortage of federal court judges, adding that it's up to the federal government to make a unified system.
"We have supported the call for an increasingly unified court, but it's not within my control," he said.
Some of the pressure from the judges' shortage will be relieved, said Bentley, with the recent hiring of eight new federal judges.
A report last spring from the Ontario Bar Association found that the province's legal system has reached a "breaking point." There is an acute shortage of judges and many people are finding the system too complicated and expensive since they can't get help they need through an underfunded Legal Aid program, it said.

Making Equal Parenting the default action during a separation or divorce would have the single greatest beneficial impact on maing the courts less clogged. Appointing numerous new judges is a band-aid solution, at best.

Where the lawyer, Gerald Yemensky, speaks of a parent withholding access to the other parent, this would simply not happen if Equal Parenting was the default action at separation. Alternatively, if a parent did attempt to do so, there would be penalties for such action. That is what happens when both parents are treated equally at separation.

Also, where Alfred Mamo speaks of Harper having an agenda of keeping families together, I strongly believe that Harper's so-called agenda is that, since he supports Equal Parenting, the lack of having enough judges will not be such a pressing concern once EP is brought about because less judges (and lawyers) will be needed after EP becomes law.