Access to Justice: Second interview with Justice George Czutrin | Thomas Cromwell
Tuesday, October 24, 2017 @ 8:30 AM | By Thomas Cromwell
TC: I am told that more than half of the people in your court do not have lawyers. What would you like to see happen to address that? Who is responsible for addressing this issue?
GC: There are many things that we are already doing to try to address this challenge, some of which I have already noted. Others, however, require financial commitments, which unfortunately have not yet been forthcoming for the family justice system. For example, limited additional funding from Legal Aid Ontario could (i) support an expansion of the very successful Family Law Project run by Pro Bono Students Canada and (ii) make duty counsel family law services more available at Superior Court of Justice locations.
Unfortunately, family law services have recently been cut by Legal Aid Ontario which will only exacerbate the problem. Several other suggestions for modestly priced enhancements that would have significant benefit are set out in the Superior Court of Justice’s responses to the Ministry’s Family Legal Services Review, which I understand is now available on the law society’s website.
We also continue to consider ways to simplify and further improve the family court process both as a court and also as members of Ontario’s Family Rules Committee, while still ensuring that the court receives the information that it needs under the various family law laws. The Family Rules Committee has representation from all Ontario courts, as well as the bar and the Ministry and is chaired by Justice [Mary Lou] Benotto of the Court of Appeal.
To repeat, improved technology would perhaps be the best opportunity to simplify the gathering of information that is necessary to assist families in resolving issues (within or outside of the court process).
To answer your second question, I think each participant in the family justice system shares responsibility for addressing this issue, given our areas of joint and divided responsibility. This includes both levels of government, which have yet to make the significant financial and resource contributions that we have recently seen for criminal cases.
I also think that ongoing and continuing bar leadership is required in order to make family lawyer services more accessible to middle class Ontario families, which is one of the primary goals of the family legal services pilot that I mentioned above. That can only be expected to come with full support from both the law society and the bar’s insurer (LawPRO).
TC: If you could wave a magic wand and make three changes in family justice, what would they be and why did you select these changes?
GC: The reality is that the court process and our court connected services (FLIC, mediation, DROs etc) already result in more than 95 per cent of all family cases being resolved without adjudication or trial and our judges spend most of their time in assisting families in resolving cases. This is not to say that there is not still room for improvement, which of course there is, but instead that the system is not as adversarial and ugly for the bulk of its users as headlines might suggest.
Turning to your question, the "Meaningful Change for Family Justice" report was national and, as you know, each province was somewhat different in where they stood. My plea at this point is that family justice organizations in Ontario be supported to get on with implementing the concrete changes that we already know need to be made, with proper resourcing, many of which are already at least partially in place. And that our ability to do so not be hindered by additional meetings, forums etc., where we are asked for our input, yet again, about priorities for improvements.
To answer your question more directly, the three pressing areas where progress is essential to help fill the implementation gap are:
1. Technology: We need technology to bring us into the 21st century, so that each family justice participant can work more effectively to meet their responsibilities. We don’t necessarily need to stand in line anymore to do our banking. The process of renewing passports, our health cards, drivers licence or file our tax returns have been modernized. Our family court administrative processes remain cumbersome and paper-based. As noted above, parties need help to complete their paperwork properly in advance of any court attendance, without having to attend court in person to file the documentation.
2. Unified Family Court expansion: We need support from the federal government for the necessary judicial appointments to expand Unified Family Courts in Ontario, first to the eight sites that the court has identified, and then provincewide. Ongoing support will also be required from the provincial government to ensure that these courts have appropriate facilities and staff for the court, the conferences, motions, or hearings of family cases.
3. Ongoing support and funding for the necessary supportive services: We need to ensure that family court services, including mediation, DROs, Mandatory Information Programs, Supervised Access services, Legal Aid etc. have sufficient and sustainable funding so that the system can keep up with increasing demand. These family justice services are essential for the successful transition of families to their new realities post-separation.
We have seen the dangers of overreliance on volunteers in family law and must remember that many family lawyers are already doing a significant amount of work on a volunteer basis or at reduced rates (either on their own, through Legal Aid, the Office of the Children’s Lawyer, mandatory information programs, etc.).
I am hopeful that we will start to see real, concrete steps forward in these areas in the foreseeable future to ensure that we are able to meet the needs of separating families in Ontario going forward.
Read part one of the interview here.
The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.