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?