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Canadian Association for Equality response to Meaningful Change for Family Justice: Beyond Wise Words, report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters

 

In April 2013 the federal government’s Family Justice Working Group’s Action Committee on Access to Justice in Civil and Family Matters released a report on family law in Canada. Meaningful Change for Family Justice: Beyond Wise Words reviews a large number of previous reports on family law, examines what impact they have had on family courts in Canada, and provides 31 recommendations for improvements.

So what is the state of family law in Canada? Why was this report commissioned? In the Executive Summary, the report’s opening paragraph states:

Canadians do not have adequate access to family justice. For many years now reports have been telling us that cost, delay, complexity and other barriers are making it impossible for many Canadians to exercise their legal rights. More recently, a growing body of research has begun to quantify the extent of unmet legal need in our communities and to describe the disquieting individual and social consequences of failing to respond adequately to family legal problems.

The concluding sentences of the report are:

The linkage between access to family justice and the rule of law is direct and immediate. This is where most Canadians need the justice system. Family justice must be made affordable and accessible to ordinary Canadians.

The main problem with family law in Canada then, according to the Action Committee’s report, is that the family justice is not sufficiently accessible or affordable. The Hon. Thomas A. Cromwell, chair of the Family Justice Working Group’s Action Committee, is quoted several times in the report as saying, “I do not view access to justice…as simply access to litigation or even simply as access to lawyers, judges and courts.”

So if the main problem with family justice is insufficient accessibility, and access to justice means more than just access to lawyers, judges and courts, what are the current barriers to accessibility and how can they be removed?

The first section of the report reviews a number of completed studies on Canadian family law and observes:

A key theme of all reports is the place of adversarial (rights-based) and non-adversarial (interest-based) dispute resolution processes in the family justice system and the still untapped potential for non-adversarial values and consensual dispute resolution processes to enhance access to the family justice system.

The report continues: “The legal profession has adopted non-adversarial approaches to family law disputes and processes like mediation and collaborative law are now widely used across Canada.” The report concludes, however, that “the family justice system needs to integrate and utilize non-adversarial, problem-solving values even more fundamentally than it already has”.

To summarize then, the report defines the main problem with Canadian family justice as a lack of accessibility and recommends as a solution the broader utilization of non-adversarial approaches to family law processes, such as mediation and collaborative law.

The report asks, “The ideas needed to make the family law system work better have already been articulated and we ask, what is getting in the way of the changes that are widely seen as necessary?.” It then identifies two primary barriers: 1) the limited resources available for the family justice system, and 2) “The Implementation Gap”, the justice system’s incomplete embrace of non-adversarial or “consensual dispute resolution processes” (CDR). In other words, there are no problems with the Canadian family justice system other then the speed of policy implementation.

The bulk of the report consists of a detailed exploration of non-adversarial approaches to family law disputes (“Our Hybrid System: Adversarial and CDR Paradigms”) and concludes with a call for the “need for bold innovation and change in the family justice system”. The report’s 31 recommendations are mainly detailed instructions for eliminating the “Implementation Gap” by providing enhanced access to family justice through a more comprehensive application of CDR principles and tactics.

 

Canadian Association for Equality’s response

Is the main problem with the Canadian family justice system really the “Implementation Gap”? Is enhanced access to CDR the answer to the “need for bold innovation and change in the family justice system” that the report calls for? Ontario Court of Appeal Chief Justice Winkler is quoted in the report as saying, “I do not believe [the changes required to the family law system] can be achieved by tinkering at the edges of the existing family law system or by grafting new procedures and services onto the existing system.” But tinkering at the edges of the system is exactly what the main thrust of the report – enhanced access to CDR – seems to be advocating.

The Action Committee’s report is very detailed on answers, but vague on what the actual original questions were. The report quotes a lot of other reports, such as this one by the committee’s Prevention, Triage and Referral Processes Working Group:

[This report’s] primary starting point and consistent focus is on the needs and concerns of individuals: it looks at legal problems from the point of view of the people experiencing them…This vision of access to justice requires definition of problem.”

So what exactly is the problem? What are the specific challenges of “the people experiencing it” on the ground? Nowhere are the views or concerns of these individuals mentioned in the report. The report does say there is a built-in tendency for adversarial processes to polarize spouses and exacerbate conflict; that parental conflict can be very harmful to children; and that “the complexity of family breakdown and the relative inaccessibility of the courts results in many family law problems remaining unaddressed and unresolved”.

But this just begs the question. How specifically does the current process polarize spouses and exacerbate conflict? By what methods is harm inflicted on children during these protracted conflicts? How exactly is the relative inaccessibility of the courts experienced? By whom, and when? What specific family law problems remain unaddressed and unresolved? Without knowing the answers to these basic questions it’s hard to imagine how effective remedies can be determined.

In fact the report admits in section 11, Data and Evidence-Based Decision Making:

We have surprisingly little empirical information about the nature and scale of family dispute in society generally, or about the adequacy of the justice system’s response or the consequences of adequate or inadequate resolution of family disputes. We lack an empirical understanding of what happens to family cases after they enter the justice system. We know that a very small percentage go to trial [1%] but we have no data about what happens to the remainder. We don’t know how many cases settle, when or why they settle, or after what cost and on what basis they resolve.

If, as they admit, the committee doesn’t really have an “empirical understanding of what happens to family cases after they enter the justice system”, how can they then be so sure that the solution is enhanced access to CDR? How can they even know what the problems really are?

To help address this problem the report’s final recommendation, number 31, is “that universities, ministries of justice, judicial and bar organizations, and non-government organizations cooperate in generating more and better empirical research into the operation and administration of the family justice system, particularly with respect to access to family justice”.

This certainly would help to determine what the problems with the family justice system are. But is there really a lack of existing empirical information? Is there currently “no data” on the 99% of family cases that enter the justice system but don’t wind up in a trial?

A logical place to start would be with what we do know. The most measurable outputs of Canadian family courts are court orders, which consist primarily of child support orders and custody & access orders. However, information about these outputs is not supplied or even mentioned anywhere in the report. Here are some things, not in the report, that are known about what happens to family cases after they enter the justice system.

  • 96% of child support orders are made against fathers.[i]
  • 77.7% of sole custody orders are granted to mothers, 5.2% to fathers. The remaining 16% are granted to other family members.[ii]
  • All 13 Canadian provinces and territories have a government agency dedicated to collecting child support, while none have even a department to enforce custody orders.
  • The 2011 census found there were 2,349,225 single parent families in Canada, 1,878,845 mother only.[iii]
  • The 2011 census reports that of the approximately 10 million children in Canada, about 2 million (one in five) live without their father.[iv]

These findings indicate an extreme inequality within the family justice system. Does this imbalance simply reflect the day-to-day reality in Canadian homes? Not according to a 2012 national study on work-balance and caregiving by CarletonUniversity’s Linda Duxbury and WesternUniversity’s Christopher Higgins. They found that women were either primary earners or equal breadwinners in just over half of participating families, that one in three women said their partner had primary responsibility for child care, and in dual-income families, men and women reported that they were equally likely to miss work for child and elder care.

So why are the family court orders so asymmetrical? And, more importantly, what are the effects of this imbalance on the people experiencing it, especially the children?

 

CDR and other non-adversarial approaches

Beyond Wise Words quotes a family justice report published in British Columbia in 2005 that observed, “We apparently acknowledge the shortcomings of the current system and the merits of consensual processes for families in conflict, but still people are steered to the courthouse.” Why and how are people still steered to the courthouse? The report doesn’t ask the question.

The report does describe how widespread the impact of family courts is on Canadians:

It is probable that more people are touched by family law disputes than by any other single area of the law, especially when considering the broad range of relatives, friends, employers and colleagues whose lives are affected by a single family separation… Family law cases comprise about 35% of all civil cases. At the same time, only 1% of divorce cases go to trial, suggesting that the greatest volume of work of family courts involves non-trial appearances and negotiated resolutions.

The report states, “We don’t know how many cases settle, when or why they settle, or after what cost and on what basis they resolve.” To help understand why 99% of family law cases settle before a trial, one only has to imagine the response when a father is shown the family court statistics listed earlier. Any mediator will tell him to just accept the reality that he will lose his children and don’t fight it, for the kids’ sake. His lawyer may or may not tell him that there is no advantage in going into legal debt with money you are about to lose to pay for a fight you cannot win.

None of this is considered, however, as the report focuses instead on the panacea of family law reports: mediation. Although ”the legal profession has adopted non-adversarial approaches to family law disputes and processes like mediation and collaborative law are now widely used across Canada.”, the report concludes that “the family justice system needs to integrate and utilize non-adversarial, problem-solving values even more fundamentally than it already has.”

This is of course all well and good. Courts are based on an adversarial model and poorly suited to resolving complexly interwoven family breakup issues. In fact, separating partners often work together with lawyers or mediators to negotiate an agreement and then have it authorized by the courts. The main problem, as the report notes, is with high-conflict cases:

While small in number, these cases take up a disproportionate amount of justice system resources and have devastating effects on the children… The non-legal (emotional, interpersonal, and relationship) problems often fuel and complicate the legal problems. This is particularly true in high conflict cases.

But high-conflict is built into the system when one party has incentives to be adversarial. Mothers have a strong incentive to get physical custody of the children. Once the physical custody is over the magic 60% mark, the father is solely responsible for financial support. The statistics above (not referred to in the report) show that is how in fact the vast majority of cases turn out.

Whatever the stated intentions of the family courts, or indeed even the intentions of the couple first entering the system, it quickly becomes apparent that there is a big financial advantage for the mother to obtain sole custody. This structural bias is not a problem of accessibility or affordability, it’s a fundamental issue of fairness and equality.

Even shared custody court orders do not necessarily mean that parents equally share their children’s physical custody. Under one-quarter of children with shared custody as part of the court order live part of the time with each parent. More than two-thirds live exclusively with their mother.[v]

And even when the custody and access court order stipulates more equal sharing arrangement such as joint custody, the mother can withhold access with impunity at any time simply because, unlike child support court orders, no provinces or territories have custody enforcement mechanisms.

In an overview of approaches to access enforcement, the Department of Justice lists several cases in which judges even refused to enforce access orders, and one in which the British Columbia Supreme Court held that the father’s request for such an order reflected negatively on his ability to parent. The Court said that the father was “considering his own parental rights above the interests” of his child.[vi]

The Department of Justice has actually stated that the most effective means of enforcing access of non-custodial parents is to bring summary claims for expenses incurred as a result of a wrongful access denial.[vii] This solution does not grant children time with their non-custodial parent (usually fathers), which is the heart of the matter. And where a father at this point would come up with the money to pay the legal fees for this action, the Department of Justice doesn’t say.

Mediation and other non-adversarial approaches will only work if there are no obvious advantages to be gained for one party to maintain an adversarial approach. This is clearly not the case in the current Canadian family justice system. Rather than beginning each family law case by assuming that each parent should be equally responsible for their children’s physical, emotional and material well-being, the current system generally begins with the assumption that the mother should have physical custody of the children and the father should be financially responsible. It is then up to the father to prove otherwise. It would be hard to imagine a family law process more diabolically designed to inflict maximum conflict, pain and suffering on all parties.

Clearly there can be no serious contention that the type of radically unequal parenting orders issued by courts every day actually promote the best interests of children, the legitimate interests of parents, or those of society in general. The best way to correct the current adversarial bias of the Canadian family justice system would be to introduce into the current process for making support, custody and access rulings a legal presumption of Equal Parental Responsibility. That would be bold and innovative.

 

Conclusion

A lack of access and affordability may well be the main problem with the Canadian family justice system, as the committee states, but there is no empirical evidence cited in this report to support that conclusion. There is however ample evidence, not available in the report, to indicate that children are  systematically separated from their fathers by Canadian family courts, and that fathers are the ones ordered to be exclusively responsible for the financial consequences of divorce and separation.

Rather than considering the implications of these facts, or even mentioning them, the report only says, “We know that a very small percentage go to trial but we have no data about what happens to the remainder.” It’s hard to comprehend why the report does not present and review the clear and preponderant evidence of inequality in family court settlements and court orders. Considering what’s at stake in family justice, this can only be described as willful ignorance.

Beyond Wise Word concludes that “the family justice system needs to integrate and utilize non-adversarial, problem-solving values even more fundamentally than it already has”. While laudable, that goal is fundamentally incompatible with a family court system structurally skewed to encourage conflict. Effective mediation can only occur when no party has a clear advantage in seeking an unequal outcome.

While the report observes, “The non-legal (emotional, interpersonal, and relationship) problems often fuel and complicate the legal problems”, it is in fact the anti-father bias of the family court system itself that often fuels and exacerbates existing emotional, interpersonal, and relationship problems. And on the end of that pain chain are the children.

Beyond Wise Words provides detailed answers to the wrong questions. Truly wise words can only be based on an accurate understanding of the specific problems facing family justice in Canada today. This is a prerequisite to forming any useful recommendations for effective remedies or improvements. Without this we can expect no bold innovation or change in the family justice system in Canada, but instead a maintenance of the status quo.


[i] Statistics Canada. Interjurisdictional cases of spousal and child support, 2010/2011. Updated: March 28, 2012. [http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11628-eng.htm#a1]. Jurisdictions reporting to this survey include Newfoundland and Labrador, Nova Scotia, New Brunswick, Prince Edward Island, Saskatchewan, Alberta, Yukon, Northwest Territories and Nunavut.

[ii] Canada: Department of Justice. Sharing Custody- When Parents Separate: Further Findings from the Natioanl Longitudinal Survey of Children and Youth (2004-FCY-6E). Updated: Dec 5, 2011. [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2005/2004_6/p3.html].

[iii] Statistics Canada, 2011 Census of Population, Statistics Canada catalogue no. 98-312-XCB2011019 (Canada, Code01

[iv] ibid

[v]Canada: Department of Justice. Sharing Custody- When Parents Separate: Further Findings from the Natioanl Longitudinal Survey of Children and Youth (2004-FCY-6E). Updated: Dec 5, 2011. [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2005/2004_6/p3.html].

[vi] Ontario: Ministry of the Attorney General. What you should know about family law in Ontario. March 2012 [http://www.attorneygeneral.jus.gov.on.ca/english/family/famlawbro.asp].

[vii] Canada: Department of Justice. Overview and Assessment to Approaches to Access Enforcement. Updated: Dec 5, 2011. [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2001/2001_8/can4.html#N_104].

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