‘Excruciating’ trial in case that lasted 17 years emblematic of troubles plaguing family courts | Financial Post

Financial Post
Family Court James Alexander Michie

In Ontario's Central West district, there are simply not enough courtrooms to accommodate all of the cases that require a hearing.Tim Fraser for National Post files

Laurie H. Pawlitza: In every province in Canada, cases are taking longer and our laws have become significantly more complex

On Nov. 19, 2018, Regional Senior Justice Peter Daley took an unprecedented step. Speaking to media, members of the profession and the public from the dais in the Brampton, Ont., courthouse, he addressed growing concerns over the backlog in his region’s courts.

“Regrettably, the Ontario government has failed and refused to live up to its responsibilities, despite being implored to do so countless times over many years by the Superior Court of Justice,” he said.

Quoting the Supreme Court of Canada, he went on to say that “the lack of institutional resources cannot be an excuse used by the Crown to deny an accused’s right to a timely trial. A similar argument may be made for families who are in crisis and desperately require the court’s intervention.”

Two days later, on Nov. 21, 2018, Justice Clayton Conlan released a decision arising from a ten-day trial he heard in Milton, Ont.

Justice Conlan’s decision began with these words: “This proceeding has existed for 17 years. That is not a misprint. I repeat, this proceeding has been around for three years short of two decades.”

While Regional Senior Justice Daley and Justice Conlan have something in common (they each sit in the Central West judicial region of Ontario), the circumstances described by each last week are well known to many who attempt to access the family court system in Canada.

For readers who have managed to avoid our family justice system to date, statistics provide context.

In 2017, the former Chief Justice of the Ontario Provincial Court, the Honourable Annemarie Bonkalo, reported in the Family Legal Services Review report, that 57 per cent of people appearing in family court represented themselves. When asked why, the most common answer given was that the self-represented spouse could not afford to retain counsel.

In a recent study commissioned by the federal Department of Justice, the most common legal problem related to a relationship breakdown.

When cases come to court, certain matters must understandably be prioritized. In cases where an accused’s liberty is at stake, the Supreme Court of Canada has set timelines for when matters must be heard. Those criminal cases are given priority over other cases.

Except for child welfare cases, where children are taken from their homes and may become wards of the state, there are no similar timelines in family court.

Regional Senior Justice Daley explained the situation in Central West in plain terms. One in ten Ontario residents lives in Peel region, part of the Central West judicial region. It is the fifth-most populous region in Canada. While a new courthouse was built in 2000, it was almost too small to accommodate the cases it needed to hear when it opened.

As of Nov. 1, 2018 in Central West, the earliest hearing date that could be given for a family law motion that required more than an hour of court time was eight months away. When a judge hears a family motion, she or he makes a decision, pending trial, about things such as where a child lives, the child’s schedule with each parent, whether a spouse has an obligation to pay child support or spousal support and who can live in the home. Family dynamics and finances can be complex, and often require more than a half hour for each side to argue.

In Central West, a family law trial needing more than five days of court time cannot be heard for sixteen months.

A common response to the issue of delay in the family courts, is that separating spouses should simply be more reasonable; they should be able to agree on things as important as their children and money. This response is as unhelpful as it is uninformed.

Spouses separate for a reason.

One spouse may be fleeing domestic violence or financial abuse. Substance abuse is increasingly common, as is mental illness. If money is an issue, after separation, the same income now has to support two households instead of one. And even if the reason for separation has at its heart, a mere inability to communicate with the other spouse, it is foolhardy to think that inter-spousal communications improve after a separation.

In Central West, there are simply not enough courtrooms to accommodate all of the cases that require a hearing. Many other jurisdictions across Canada also have an insufficient number of judges to hear the cases that come before them in a timely way.

In every province in Canada, cases are taking longer; our laws have become significantly more complex.

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Source: Laurie H. Pawlitza | Financial Post

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