(Image by Mohamed Hassan – Pixabay)
♫ Now it’s time for change
I feel the the future
In the hands of our youth… ♫
— Music and Lyrics by D. McDaniel & N. Sixx, recorded by Mötley Crüe
Does family law need deep structural changes in how it resolves disputes? John-Paul Boyd, QC, an accredited family law arbitrator, family law mediator, and parenting co-ordinator, in an article in The National (Feb. 2019) entitled: “Family Justice in Canada is at a Breaking Point”, wrote the following:
“[W]e should consider removing family law matters from the courts altogether. These are disputes that could be moved into a specialized administrative system offering both adversarial and non-adversarial dispute resolution alongside: education on parenting after separation, child development and conflict management; social services providing parenting, housing and employment support; and financial and mental health counselling, parenting assessments and similar services.”
John-Paul notes that the current system sees up to 80% of family law litigants as self-represented. High fees simply place lawyers out of reach for the vast majority of people undergoing family disputes. One can ask the question as to how long this can be sustained before the public views the social contract given to courts and lawyers to resolve such disputes as being broken and needing replacement.
The Canadian Forum on Civil Justice (“CFCJ”) prepared an infographic on the “Cost of Family Law Disputes” from data from the Canadian Research Institute for Law and the Family’s (“CRILF’s”) “An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implications of Various Dispute Resolution Methods” report. They looked at Collaboration, Mediation, Arbitration, and Litigation and found that while Litigation was viewed at the most useful dispute resolution process for high-conflict disputes (such as: risk to an adult or child, risk to property, allegations of violence or substance use, mental disorder, or alienation), Mediation and Collaboration were most useful for low-conflict disputes (such as hearing the voices and preferences of children, disputes about care and parenting, child or spousal support, and division of property and debt). Almost all lawyers using collaboration and mediation agree that the results achieved are in the interests of the children.
CFCJ found the average cost to resolve high-conflict disputes as follows: Collaboration was $25,110, Mediation $31,140, Arbitration $40,107, and Litigation $54,390. For low-conflict disputes the average costs were: Collaboration $6,269, Mediation $6,345, Arbitration $12,328, and Litigation $12,395. Clearly the financial costs drop and the social outcomes are higher when alternative methods to litigation are utilized.
John-Paul Boyd, QC echos these findings: “[T]he public purse would be better spent supporting processes that are child-centred, holistic, cooperative to the extent possible, and promote the capacity of family members living apart to resolve disagreements on their own.”
The studies show that the current system is not working for the vast majority of people with family law disputes. Now is the time for change.
What other solutions to fixing Family Law have been proposed?
Along with J.P. Boyd, QC’s suggestion of removing family cases from the courts and placing them into a special administrative tribunal aimed at promoting the well-being of children, he advocates greater use of unbundled legal services and non-lawyers assisting clients with legal problems.
Here is a sampling of other solutions proposed to fix Family Law:
Nick Hilborne wrote an article in legalfutures.co.uk entitled, “Family lawyers need to replace billing targets with new business model” (August 5, 2021) in which he interviewed Gillian Bishop, co-founder of pioneering London firm Family Law in Partnership (“FLiP”). Ms. Bishop stated: “Family lawyers should scrap billing targets and develop a new business model.” To Ms. Bishop, billing targets are a dead weight around the necks of many, many practitioners and lead to many young lawyers working longer and longer hours each day in order to hit them. “I have heard so many times that to record five hours chargeable a day you routinely have to be in the office twice that time. Just crazy.”
Ms. Bishop stated, “a number of commercial firms now operate without a billing target model, showing that ‘it can be done,’ and the challenge was to create a variation of that model or ‘another model altogether’ that worked for the family law sector.”
She also stated that she “would like to see greater use of collaborative law.”
FLiP has taken some steps along a new path. Three years ago, FLiP started the first training scheme in psychologically based supervision to help family lawyers manage work-related stress and Ms. Bishop said, “that supervision should be compulsory for family lawyers.”
In the UK, there is a major overhaul of family courts to protect domestic abuse victims. The Ministry of Justice published a press release stating:
“Fundamental reform of how the courts hear cases, through a new investigative approach, will be trialed as part of the Integrated Domestic Abuse Courts pilot — these consider family and criminal matters in parallel in order to provide more consistent support for victims. Emphasis will be placed on getting to the root of an issue and ensuring all parties are safe and able to provide evidence on an equal footing — without the retraumatising effects of being in court with an abusive ex-partner.”
The Ministry stated, “that this move came after an expert-led review into how the family courts handle domestic abuse and other serious offences had raised concerns that victims and children were being put at unnecessary risk.”
In an article entitled, “A New Approach To Nesting In Family Law,” Aylward Game Family Law, in Australia, states:
“Frequently after parents separate, it is the children who switch homes between the parents, with varying degrees of frequency. This means it is the children who are subject to the demands of frequent packing up and moving house in order to spend time with each of their parents. We have in the past reflected that it must feel a little unfair to the children to be subject to this arrangement, which can be very disruptive.
The idea behind nesting turns this on its head, and the children stay in one house and the parents are the ones who move in and out. This seems to place the best interests of the children at the top of the list of priorities, which is in line with the Family Law Act in Australia.”
(originally published in PracticeTalk and Tech Tips in the Canadian Bar Association’s BarTalk magazine:
https://www.cbabc.org/BarTalk/Articles/2021/October/Columns/Examining-the-Facts
© 2022 David J. Bilinsky
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