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Time to mobilize family law litigants | John-Paul Boyd

Wednesday, May 01, 2019 @ 2:29 PM | By John-Paul Boyd


John-Paul Boyd %>
John-Paul Boyd
Another election has come and gone in Alberta, and with it another opportunity to get family law reform and access to justice on the radar.

Unfortunately, family justice issues were invisible in the tumult leading up to the recent election, despite the notable efforts of the Canadian Bar Association Alberta Branch, and were completely absent from important platform comparisons conducted by The Globe and Mail and the National Post. The oversight is entirely understandable, as the election platforms of both the New Democratic Party, the exiting government, and the United Conservative Party, the incoming government, had not a single thing to say about family justice issues.

In fact, whenever either party made a reference to the justice system, the exclusive focus was on improving the administration of criminal law and hiring more judges and prosecutors, expediting trial dates, and that tired old mantra of the right wing, “getting tough on crime.”

This baffles me. I cannot think of a single area of the law that affects more Canadians than family law, particularly given that while Albertans enjoy one of the highest rates of marriage in the country, we also have one of the highest rates of divorce.

Making matters worse, what few statistics we have on the administration of family justice reveal a system on the verge of collapse. Legal aid, in those few instances where it is available in family law disputes, requires an income well below the poverty line to qualify for representation, the cost of which eligible Albertans are required to partially repay. Perhaps as a result, rates of self-representation are as high as 80 per cent in some courts, resulting in tremendous delays and backlogs.

In fact, data collected by the federal government shows that more than half of Alberta divorce files were four or more years old in 2015. We also know that 10 to 15 per cent of family law cases are high conflict, with longer than usual trials, multiple interim applications before trial and multiple variation applications after trial, and we know, thanks to research by the Canadian Forum on Civil Justice, exactly how the negative effects of unresolved civil disputes spread beyond the individual and the court system to affect our public spending on health care and social services. Other research tells us about the devastating impact protracted parental conflict can have on the well-being of children and overall wellness throughout their lifespan.

Nonetheless, family law, access to family justice and the reform of family dispute resolution processes have almost zero visibility in the public eye. What’s curious about this is that very few people seem to be happy with existing family justice processes. In fact, a lot of people seem to be outraged with existing justice processes.

Likely as a result of my public writing on family law and access to justice issues, I receive a steady stream of telephone calls and e-mails each month from individuals across Canada who have questions, comments and concerns about family law and the court system. I answer queries as best I can, but a significant number of these people contact me with what amount to complaints.

They tell stories of being trapped in a system where disputes drag on for years without conclusion, being powerless to enforce agreements and orders, feeling frustrated at their opponent’s ongoing disregard of the rules of court, and having exhausted their savings and ability to borrow paying for counsel. They tell stories of judges who seem annoyed when dealing with unrepresented litigants, stories of condescending lawyers who take advantage of their ignorance of the law, and stories of fruitless hours spent reading rules and legislation trying to navigate a perplexing system with concurrent trial courts with incompletely overlapping jurisdiction and legislation with incompletely overlapping subject matter.

You don’t need to look very far to find personal accounts from those who feel disenfranchised and alienated from our justice system. You could read the blog of the National Self-represented Litigants Project, and if you don’t want to do that, pretty much everybody knows someone with a horror story about how their family law dispute was resolved. For a more academic approach, West Coast LEAF has a library of research reports which include the personal experiences of women involved in family law disputes.

I understand, I think, the institutional reasons why meaningful reform is so difficult, despite the foot-thick stack of papers and policy positions screaming for reform. Reform costs money, requires risk-taking and demands innovation on the part of individuals and organizations deeply invested in the status quo.

However, the relative silence of the disaffected clients of the system, who would be a powerful voice for change with the potential to influence election platforms if they could but come together, is puzzling.

Is the problem that public perception of family law continues to be tainted by a sort of Victorian unsavouriness? Is it a hope or expectation that family law problems are bad things that happen to other people but not to me? Is it a perception that people involved in unpleasant family law disputes must have somehow brought their misfortune upon themselves?

Either way, given the torpid pace of meaningful reform, even in jurisdictions such as British Columbia which lead the country in improving access to justice, I am coming to suspect that mobilizing disaffected family law litigants may be what’s required to spur provincial, territorial and federal politicians to action.

If we will not do it ourselves, perhaps the voices of those most impacted by a system in crisis is what’s necessary to get family law reform and access to justice on the radar at election time. No party which claims to have a “family first” agendum should be able to ignore family justice issues and the adverse impact the existing system has on women, men and children.

John-Paul E. Boyd is a family law arbitrator and mediator, working in Alberta and British Columbia and the former executive director of the Canadian Research Institute for Law and the Family. Learn more at John-Paul Boyd Arbitration Chambers.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.