Focus On

Things we can do if we’re serious about self-reps | Joel Miller

Tuesday, August 03, 2021 @ 2:31 PM | By Joel Miller


Joel Miller %>
Joel Miller
In the three previous articles in this series, we’ve looked at how economists and social scientists have developed concepts and principles that we can apply to our family justice system if we accept that it no longer adequately services everyone seeking a judicial remedy for a family law problem. Our system works fine for those who can afford lawyers, but not for those who can’t.

We’ve looked at idea of complementary innovation, like that used by LEGO, that keeps the core service but innovates around it to expand its reach and client base. We discussed the idea of a marketplace offering products or services that meet the “acceptability thresholds” for different consumers by offering choices at different price and quality levels.

And we acknowledged that family law issues are spread along a continuum from complex to simple, and that the “Brumagem screwdriver” — the idea that one tool works for all problems — is currently creating a disservice to many family law litigants.

In this article and the next we’ll turn to real life things that we can do to bring family law into the modern consumer age without tearing down the existing system.

Informal Domestic Relations Trial (IDRT)

This is a judicial resolution initiative aimed at expanding the family justice system. It provides a judge-based trial that delivers a meaningful and satisfying process for people who can’t afford lawyers (even for those who can) for cases that really don’t need us. It’s an opt-in service living alongside the traditional court system. It says there can be a family matters trial that operates with relaxed rules for straightforward cases.

The hearing is without the traditional rules of evidence and procedure, leaving it to the parties to tell their stories, without cross-examination, but leaving it to the judge to ask the questions needed to get the information required for an informed and fair decision. Any evidence can be admitted subject to later determination of weight. It’s a two-hour hearing, with only limited lawyer participation, with a summary judgment in the form of an order that’s subject to appeal in the normal way.

The IDRT, already adopted in several American states, was adapted in concept effective May 14, 2021, by Ontario’s new Binding Judicial Dispute Resolution (Binding JDR) initiative, in a one-year pilot project in selected superior court locations.

With Binding JDR Ontario has crossed the Rubicon. It accepts that not all family law cases are the same and accepts the blindingly obvious — that what’s appropriate and needed for complex cases is neither appropriate nor needed for “less complex” cases.

In his May 14 Practice Advisory Chief Justice Geoffrey Morawetz says this is “to provide a streamlined way to reach a final resolution of less complex family law cases.” He continues: “The judge may ask questions and request additional information from the parties, if necessary, to reach an informed and fair decision. The judge will also be able to hear anything that they consider important and relevant to the issues that need to be decided, regardless of the formal rules of evidence” [emphasis added].

Binding JDR is only available in Ontario after the exchange of all necessary financial disclosure, etc., and only with the prior approval of the court.

Binding JDR fits the LEGO model of complementary innovation — providing a service that the core service isn’t providing but which can be added around that service without disrupting it, that increases the reach of that service. It provides a judge-centric system that doesn’t require lawyers so that the cost of representation is no longer a barrier to an “informed and fair decision.”

Binding JDR won’t reduce work for lawyers because it’s only available in “less complex” cases where the judge orders it. In most cases this will be for the sort of cases family law self-reps have. And they’re not using lawyers anyway.

Chief Justice Morawetz might be uncomfortable putting it this way, but Binding JDR acknowledges there is a point where good enough is good enough without requiring that all the rules and protections needed for “complex” cases be used for every case. It brings the camel’s toe into the tent. Because once we agree that the role of the judge can be expanded and the role of rules of evidence, etc., can be reduced for “less complex” cases, we’re going to have to ask what else could/should be re-examined, such as the rules of professional conduct and the role of judges and lawyers in our traditional courts. And how much “less” is needed before we have a “less complex” case.

We need to talk up the enormous value and good sense of Binding JDR and get it into the rest of the province as soon as possible. Then the other provinces will have to ask, “If Ontario is doing this, why aren’t we?”

British Columbia’s Family Resolution Centre

British Columbia has a terrific idea that we should adopt in Ontario. It’s a free mediation service for people without lawyers who want to negotiate a parenting plan. Offered through the provincial legal aid program, it provides both personal coaching, five hours of mediation and a thought-out parenting plan — all free, and all digital and remote.

Check out the B.C. provincial court announcement. Essentially one parent starts online and goes through a series of questions designed to cover the things a parenting plan should include. They set out what they think they want and can access a live coach, for free, to get help as they design their plan. Their proposed plan is then sent to the other party through the program; the other party goes through it and decides what they agree with or want changed. Or they can do their own plan.

At any time the parties can connect with an experienced, family law mediator to work through differences with joint meetings and breakout rooms. The mediator is free for up to five hours. At the end they get a printed parenting plan which can include any customized terms.

This is one of those obvious ideas that governments seem to overlook so regularly: that it’s cheaper and more effective to pay the up-front cost to set up a system that saves more money later than to provide legal aid, judges, courtrooms and staff to parents who are litigating parenting issues because they couldn’t afford to hire professionals to prepare a proper parenting plan to begin with. Providing clarity now saves litigation later and makes everyone happier.

This doesn’t prevent parents determined to litigate parenting issues from doing so. But it lightens the court’s case load down the line by getting professional help to people needing it before there’s a need to go to court. B.C. is doing this; why can’t Ontario?

More to come

The next article in this series will discuss other things that other jurisdictions are doing, and things that Ontario could do, that would extend the reach and fairness of our family justice system to those who can’t afford lawyers without tearing down anything we’re now doing or taking business away from lawyers.

This is part four in a series. Part one: What LEGO can teach family law about dealing with self-reps; part two: What economists can teach family law about dealing with self-reps; part three: The ‘Brumagem screwdriver’ and family law self-reps.

Joel Miller is a senior family law lawyer and dispute resolution officer for the Superior Court of Ontario. After several years in private practice he founded The Family Law Coach, a virtual law office providing unbundled services and coaching. Contact him at Joelmiller75@outlook.com.

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