Why family law?

At the initial meeting of the members of the leadership group for Access to Justice BC, one of the first questions posed was, “What part of the justice system in British Columbia should be the first target?” It had already been determined that the criminal justice system was out of scope, and that the focus would be on the civil justice system. It had also already been determined that Access to Justice BC would not be writing reports or itself running projects, but rather acting as a coordinating body.

With this in mind, and after some brainstorming and discussion, the leadership group decided on four main priorities: family justice, justice system culture, Aboriginal justice and legal capability/front end services. While all four priorities are worthy targets for our activities, family law was adopted as the first target, acknowledging that reform to the family justice system would incorporate reform and attention to the remaining three priorities, as each priority interacts and overlaps with the others. Indeed any attempt to reform the family justice system would be destined to failure without addressing the circumstances of Aboriginal people, the barriers of the justice system culture and the improvement of legal capability/front end services.

So, why is family justice seen as an area of urgent need? There are many reasons. First of all, the family sphere engages the most important and intimate aspects of the daily lives for many people in British Columbia. When something goes wrong in a family relationship, the consequences can be severe, affecting an individual’s physical and mental health, financial well-being and more. It is a vulnerable time when individuals and families require support. The family justice system should be in place to assist not exacerbate the circumstances. Unfortunately, it has not always been able to perform its function optimally.

Another reason family justice was chosen is because of the evidence gathered during the past several years showing that the system is experiencing serious problems. Statistics have been clear that the rates of self-representation in family law matters are unacceptably high. In my own court, the Court of Appeal for BC, 57 percent of family law matters in 2015 involved a self-represented litigant (versus 27 percent in civil matters overall). In the BC Provincial Court, the rate of self-representation in family matters for fiscal year 2014/15 was 41 percent. Across Canada, legal aid programs cover only a small portion of the legal problems families face, and even then legal aid is available only to those individuals and families of extremely modest income levels.

This is not to say that the problems with the family justice system are relevant only to self-represented litigants. The system needs to be improved for everyone whether they can afford a lawyer or not. The system continues to suffer from delay, costliness, complexity, service and funding gaps, insufficient understanding of Aboriginal circumstances, inconsistency, uncertainty and unmet needs.

Having said all of that, it is not all doom and gloom for family law. It is important to remember that the system works well for many users, and not just high-income earners. In 2015, the World Justice Project ranked Canada’s civil justice system as 18th in the world (out of 102 countries). Although only in the middle of the pack among high-income countries overall, Canada is above average in its civil justice system for effective enforcement, impartial and effective alternative dispute resolution, no corruption and no improper government influence.

It is critical that the baby doesn’t get thrown out with the bath water. There are a number of significant strengths within the family law justice system in British Columbia — strengths which will form the foundation for change — such as BC’s knowledgeable, diligent bar; the system’s stability and adherence to the rule of law; the wealth of legal information available, in print and online; the various methods of resolution available; government support for system reform; and resources like legal aid, duty counsel, Justice Access Centres, to name a few.

Over the coming months and years, Access to Justice BC will be working on a coordinated response to the problems in our family justice system. We are currently looking at the potential impact of unbundling legal services, for example, as one tool to assist people who cannot afford full legal representation. Another area for exploration is expanding the accessibility of Justice Access Centres, perhaps in a slightly different form. These centres provide litigants with timely, relevant information about court procedures, such as filling out and filing court forms. These and other initiatives, mentioned in my previous blogpost, are already gaining some traction, thanks to the work of the legal community and others.

We have understood from the outset that the perspective of court users is vital to the work of Access to Justice BC. With that in mind, I invite litigants, lawyers and anyone else who might be visiting our website to answer this question: What is your vision for a strong family justice system?

3 thoughts on “Why family law?

  1. I would like to see a Family Justice System that is less advorical and that can find way to support both parties to achieve a acceptable resolution to both parties. A process that does not mean one party will be the loser and one the winner. Parents and especially children should never have to be placed in those positions.

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  2. I very much appreciate the work of this committee being explained in public in this way, but I do not believe the committee’s approach has the potential to resolve any of the problems identified. In my view the problems are mere symptoms of a deeper institutional malaise that the committee is ill-constituted to address. The access to justice problem begins, and mostly resides, deep within the law itself where judges themselves, as the judiciary and as managers of the courts, must grapple with it before any meaningful progress can be made.

    But, the committee being in existence, here are my comments to it.

    To begin with, I feel that family law is precisely the wrong place to start a review of how the courts perform their function.

    Family law is, I think, the type of practice furthest removed from the core function of the public courts. The most logical action with respect to family law may be to move it mostly to private dispute resolution, or to its own tribunal as has been done with labour law. Indeed, labour law and family law are both a type of contract law, and as such should have perhaps the same relationship with the public courts.

    Secondly, while I do think that there is a problem with the core function of the courts, there is also a mismatch between public expectations and the core function of the courts, and this committee’s work so far is reflecting those unreasonable public expectations. A top-down analysis, beginning with the role of the courts in making law and the quality of law that has been made, is a better place to begin than with the expectations of the public that the courts should provide what might be called a “justice service.” The tension that is felt in the SRL experience, for example, may have its roots in judicial training. Addressing the tension at the SRL end of the string without addressing the weaknesses in judicial training cannot provide long term relief. Pardon the mixed metaphors.

    The fact is that the courts are not a service operation dispensing what passes the popularity contest as justice, but rather play a regulatory role as a branch of government. Justice is supposed to come from the fair application of law, which is the job of judges; “dispensing justice” is not the job itself any more than “dispensing health” is the job of doctors.

    I do not know precisely when and where things went askew in the judiciary, or whether it ever was truly better than it is today. Certainly Charter law has created some new problems: it has politicized the courts while leaving them more insulated than ever from feedback, thanks to the CJC’s single-minded pursuit, over the same period, of an uncompromising yet curiously meaningless model of judicial independence. Judicial and legal activism have contributed, as has what I will regretfully call the conceit of dialogue theory.

    The simple fact is this: if one could, with a swoosh of a magic wand, vanquish all the admitted barriers to justice such as the cost of lawyers, the complexity of rules, relative disadvantage in life, and the advantageous power of organization, it would still be a total crapshoot what happens when parties appear before a judge. And THAT is what is unjust: that the law is being applied in an increasingly arbitrary fashion. The primary barrier to justice is the quality of judging.

    Many SRLs have a tale that makes that point, and for that matter, so do many lawyers.

    It is only fair to note that the practice of judging still attracts a high calibre of individual with, often, a breathtaking capacity for nuanced analysis and stunning facility with ideas and language. The vast majority of the judiciary has the capacity for exemplary performance, and many of them use it. Few of them, however, use it all the time, and that is the management problem that is before the judicial occupation as a whole.

    There appear to be gaps in judicial training and support. There is a dearth of checks and balances on the judiciary’s work, and no apparent safeguards against nor consequences for judicial error that is short of misconduct. Far too much reliance is placed on high personal standards of performance which cannot be sustained in an atmosphere devoid of feedback. The adversary system allows judges to simply pick a winner, which some have been known to do before assessing the facts, rather than afterward. In such cases, the law has become a convenient tool for justifying bias, rather than one for overcoming it.

    A committee of people who are beneath judges in the institutional hierarchy cannot address these problems. Only judges can do so. This committee could, however, given the expertise it possesses, be a useful sounding board for the judiciary in assessing what changes need to be made in its own practice.

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