♫ 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.