A Broken Family Justice System

Aug 8, 2012 by

Several Ontario, Canada Chief Justices commenting on a report from the Law Commission of Ontario agree the family justice system in their jurisdiction left a lot to be desired and that massive changes are probably in order. Observations in the report referred to a “Broken Family Justice System” and included the fact that fine-tuning the system has been ineffective and that perhaps a totally new family law concept is required in the province. The current adversarial system of justice has proven costly and time-consuming and spouses are practically encouraged to become adversaries in the process. Suggestions included a new non-adversarial system that limits the role of lawyers in family law.

Ontario Chief Justice Warren went on record recommending that all family law litigants be required to participate in mediation or arbitration before they would be allowed to go before the court. This would mean that anyone wanting a divorce in Ontario would have to enroll in an alternative dispute resolution process first. Only in cases where the mediation was unsuccessful would litigants be able to later access the adversarial court process.

Critics of the recommendations have said that mediation is not a cure all as it can be expensive and only works when both sides want it to work. Some added that the adversarial court system pits spouse against spouse in a win-at-all-costs contest. The adversarial system only works when both sides have equal resources and that is not usually the case. Instead, critics offer that many litigants can barely afford their lawyers and instead of more mediation, lower legal fees would provide money that could be better used to support a family instead of wasting it on lawyers.

Eliminating the worst courtroom behavior in family law like false accusations of abuse, denial of access, hiding assets, bullying and other abuse will require instituting a more intelligent system with real remedies. However, sweeping changes to family law will not be popular with those who have a vested financial interest in the current adversarial system.

 

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