FOLA’s Submissions to MAG’s Consultation to Review Family Legislation and Regulations

“The Voice of the Practising Lawyer in Ontario”

FOLA’s SUBMISSIONS TO THE MINISTRY OF THE
ATTORNEY GENERAL CONSULTATION TO
REVIEW FAMILY LEGISLATION, REGULATIONS
AND PROCESSES
Submitted to: Ministry of the Attorney General
McMurtry-Scott Building,
720 Bay Street, Floor 11
Toronto, ON M7A 2S9
ATTN: Ms. Lindsey E. Park, Parliamentary Assistant
lindsey.park@ontario.ca
Submitted on: Wednesday, July 31, 2019
Submitted by:
Valerie L. Brown John Krawchenko
Family Law Chair, FOLA 2nd Vice Chair, FOLA
brown@brownlawfirm.ca jok@krawchenkolaw.com
2018-2020
EXECUTIVE
Michael Winward, Chair
William Woodward, 1st
Vice Chair
John Krawchenko, 2nd Vice
Chair, Central South Region
Chair
Jaye Hooper, Past Chair
Jane Robertson, Treasurer
Nathan Baker, Central East
Region Chair
Sam Misheal, Central West
Region Chair
Kristin Muszynski, East
Region Chair
Brigid Wilkinson, Northeast
Region Chair
Rene Larson, Northwest
Region Chair
Terry Brandon, Southwest
Region Chair
Anna Wong, Toronto
Lawyers Association
Representative
Valerie Brown, Family Law
Chair
Eldon Horner, Real Estate
Co-Chair
Merredith MacLennan,
Real Estate Co-Chair
Katie Robinette, Executive
Director
Kelly Lovell, Executive
Assistant
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INTRODUCTION
The Federation of Ontario Law Associations (“FOLA”) thanks the Ministry of
the Attorney General for the opportunity to personally participate in regional
consultation meetings and to make submissions as part of its review of family
legislation, regulations and processes. By way of background, FOLA’s membership
is composed of the presidents of the 46 local law associations (plus the Toronto
Lawyers’ Association), represented in every judicial district in Ontario. These local
law associations collectively represent nearly 12,000 lawyers who are in private
practice in firms across Ontario.
These lawyers and our member associations are on the front-lines of the
justice system. Many of our members practice family law and child protection law in
various capacities as Duty Counsel, reduced flat rate day of court counsel, Domestic
Violence Legal Aid Certificates, Legal Aid Certificates, Children’s Lawyers, and
privately through traditional retainers and limited scope retainers. They also
participate in the family court process as volunteer Mandatory Information Program
Presenters, and volunteer Dispute Resolution Officers, as well as out of court
Dispute Resolution processes as Mediators, Arbitrators, and through Collaborative
practice.
BACKGROUND
In July, 2019 the Ministry of the Attorney General commenced a province
wide consultation process with members of the legal community and the public, to
review family legislation, regulations and processes with the goal of reducing cost,
delay, and to encourage early resolution.
In particular, the Ministry of the Attorney General is requesting submissions
for ways to:
• direct family law matters out of a combative court process, where
possible;
• reduce the cost of the process to families and taxpayers; and
• streamline the processes to shorten the time to resolution.
The Ministry of the Attorney General is responsible for three primary family
law statutes:
• the parts of the Child, Youth and Family Service Act, 2017 related to the
Custody Review Board and the Child and Family Services Review Board;
• the Children’s Law Reform Act; and
• the Family Law Act.
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The Federal Government recently passed Bill C-78, which amends various
federal family law related statutes, including the Divorce Act. Changes under the
new Divorce Act include:
• a shift in the language of custody and access to parenting orders, contact
orders, decision making responsibility and parenting time;
• a positive requirement for counsel to encourage their clients to try to resolve
matters through a family dispute resolution process, including mediation and
collaborative practice;
• the requirement that family violence be considered as a matter of best
interests of the child, as well as the positive obligation of parties to protect
children from conflict arising from the litigation; and
• expanded “best interests” definition.
During its consultation process, the Ministry of the Attorney General has
requested responses to the following questions:
1. Are there amendments the government could propose to the provisions or
the regulations under these or other statutes to simplify family law
procedures?
2. How can we improve the process to encourage more early resolution of
cases before they enter the courts?
3. Would an early triage directing potential litigants to Alternative Dispute
Resolution (ADR) before the pleadings stage be helpful? Is this already
happening well now, from your perspective?
4. Are there any unnecessary pre-trial procedures or motions that are taking
up a significant amount of court resources and/or are delaying time to trial?
5. Are there any other steps the government could take with little or no cost to
reduce the time and financial burden of the family law process on litigants
and taxpayers?
In responding to these questions, FOLA acknowledges the Ministry’s
statement that:
The community’s concern with the Unified Family Court is a priority
for all of us. On this issue, Ontario has created twenty-five Unified
Family Court (UFC) sites (in Barrie, Belleville, Bracebridge,
Brockville, Cayuga, Cobourg, Cornwall, Hamilton, Kingston,
Kitchener, Lindsay, London, L’Orignal, Napanee, Newmarket,
Oshawa/Whitby, Ottawa, Pembroke, Perth, Peterborough, Picton,
Simcoe, St. Catharines, St. Thomas and Welland) and hopes to
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expand the UFC model to the rest of the province. This will not be
the focus of the planned consultation.
We also understand that the consultation does not include a discussion on
the recent reduction in funding to Legal Aid Ontario, or its consequences.
FOLA’S SUBMISSIONS
1. Are there amendments the government could propose to the provisions
or the regulations under these or other statutes to simplify family law
procedures?
Appeals:
Appeals present the greatest challenge to procedural understanding in family
law, both to self-represented individuals and counsel alike. It is a veritable
patchwork of case law, statutes and regulations. There is confusion about whether
procedural orders made at interim stages are considered final or interim orders,
which is governed by case law. Some appeal routes are clearly set out in statute,
such as the Partition Act, while others are more generally set out in the Courts of
Justice Act, Family Law Rules and the Rules of Civil Procedure. In the absence of
a Unified Family Court, appeal routes for child protection matters will differ simply
based on whether the matter is initially heard at the level of the Ontario Superior
Court of Justice or Ontario Court of Justice. As well, some appeals require leave of
the Court.
This is an obvious area that begs for simplification.
Children’s Law Reform Act:
The Children’s Law Reform Act should be updated to keep pace with the new
Divorce Act and the less recent Child, Youth and Family Services Act, 2017. In
particular, we support consistency in the language of parenting between federal and
provincial legislation, consideration of domestic violence issues and their impact on
families and co-parenting, as well as focus on reconciliation with FNIM identified
families.
Family Law Act Modernization:
We also support modernizing the Family Law Act, for such purposes as
removing the archaic matrimonial home deduction exclusion, which is already the
case in some other Canadian jurisdictions such as British Columbia. There is no
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compelling rationale for treating the matrimonial home differently as property, and
the lack of deduction will in many cases create a windfall for the non-titled spouse.
By eliminating the exception, we eliminate the incentive to spend litigation dollars
and time on determining whether a property is a “matrimonial home” or not, and treat
the parties more fairly.
A further change to the Family Law Act that we support is the creation of
statutory authority for the court to make orders for possession of a family home for
unmarried spouses (which is distinct from a married spouse having an inherent right
to possession). Currently, where title is in the sole name of one spouse, the other
is in a situation of trespass upon a breakdown in the relationship. Indeed, tenants
have more rights than a spouse, to demonstrate the absurdity of the result. In some
cases we see the Court making exclusive possession orders under the Family Law
Act, when no actual authority for the order exists. It would therefore be a meaningful
amendment, and reflect the expectations of cohabiting parties.
Annual Adjustments of Support:
Our membership supports amending the Income Tax Act, as well as the
Family Law Act, to give the Court the authority to require the automatic release of
income information of support payors, and enrollment in the Child Support Service,
for the purpose of automatic adjustments to child support on an annual basis in
appropriate circumstances. This will reduce Motions to Change and Motions for
disclosure.
Voice of the Child Reports:
FOLA supports amending s. 89, or s. 122, of the Courts of Justice Act, or the
Children’s Law Reform Act, to create clear statutory authority for Voice of the Child
Reports. Such reports are being increasingly requested by the Courts as a means
of eliminating “he said, she said” evidence, and to assist the Court, and the parents,
to understand the views of the child. Settlement is facilitated by such reports,
diverting matters from Trial and further litigation.
As part of this amendment, FOLA supports additional funding to the Office of
the Children’s Lawyer to support these Reports and avoid drawing from funding for
children’s representation. That is, we support the amendment, but not at the cost
of current levels of representation of children.
Financial Disclosure:
Currently, one has to refer to both the Family Law Rules and Child Support
Guidelines to understand the financial disclosure that is required to be produced. It
would be helpful, especially to self-represented parties, for required disclosure to be
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set out in one location, according to issue. FOLA also supports expanding the
disclosure required of incorporated businesses, partnerships and sole
proprietorship to include general ledgers and account statements.
FOLA also recommends and supports dispensing with the filing requirement
of Notices of Assessment with Financial Statements. For clarity, it is not sufficient
to provide a Notice of Assessment that has been printed from CRA’s My Account;
the Court will only accept Notices of Assessment issued directly by CRA. While we
agree such statements should be exchanged, and filed in due course, the
requirement that they be filed with the Financial Statement within 30 days of being
served with an Application is impractical and unduly burdens the Courts with 14b
Motions to permit late filing of Answers and Financial Statements, or permit filing
without Notices of Assessment. This is an utter waste of Court Filing Staff and
Judicial resources and only serves to delay the parties in advancing to a meaningful
step in the process.
Forms:
There are several Family Law Forms that are either redundant, or unused.
FOLA supports reviewing and streamlining the required forms. For instance, some
of our members have identified Form 35.1 Affidavit for Custody and Access and
Form 13A Certificate of Financial Disclosure as under-utilized forms in their areas,
or forms that are used inconsistently, and which should be eliminated.
While the Forms related to Motions of Change were clearly intended to create
more of a simple “fill in the blanks” form, the experience is that the forms are
overwhelming to self represented parties, and unhelpful to those with counsel. The
language of “Motion to Change” is also misleading; it gives the perception of a more
streamlined quick process, when in fact the same steps are required as in an original
Application. Often, new issues arise alongside previously determined issues, raising
process issues of whether an Application or a Motion to Change is required, or both.
FOLA supports changing the language and forms regarding Motions to
Change. To avoid duplication of forms and process confusion, FOLA supports the
use of a universal Application form (not for Simple Divorce) which permits variations
and/or review similar to the Application form in child protection which allows the
Applicant to check off a box on the front page indicating whether the pleading is an
original Application or a Status Review Application.
Conversely, Form 20 Request for Information currently applies only to Child
Protection matters. However, it is uniformly used by counsel in domestic matters,
and rarely, if at all, in child protection. We support the Form being amended to be
a Request pursuant to Rule 13(11) of the Family Law Rules.
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2. How can we improve the process to encourage more early resolution of
cases before they enter the courts?
Use of Technology:
Under the new Divorce Act, counsel are required to encourage parties to
resolve their issues through a family dispute resolution process. Counsel are able
to investigate and assess, even if informally, what the legal issues are, what the
family dynamic is, and make recommendations to their clients about their process
options in the circumstances of their case.
For those without counsel, technology may help to close the informational
gap. While not comprehensive, some online platforms that may be adapted for use
in a Family Court process include:
• In Ontario, Ryerson’s Legal Innovation Zone has created the Family Law
Portal to help guide parties through their substantive rights and obligations
(https://www.familylawportal.com/). While the Family Law Portal starts to
screen parties for family violence and power imbalances, it falls short of
offering information on what family dispute resolution processes are
available. The addition of such information, and support for these services,
may assist in establishing expectations and process options prior to the
commencement of litigation;
• Community Legal Education Ontario’s (CLEO) Family Law Guided Pathways
is an online resource that assists parties in completing their Court Forms.
(https://stepstojustice.ca/guided-pathways);
• We also see an emergence of online dispute resolution services (for instance
the Civil Resolution Tribunal in British Columbia https://civilresolutionbc.ca/),
and disclosure sharing software (such as https://www.financialdisclosure.ca/
which has been adopted by the Ontario Association of Family Mediators),
that may be adapted and used in Family Court processes.
FOLA supports self-represented parties completing an online Mandatory
Information Program (or other information program), with an emphasis on family
dispute resolution processes and family violence, prior to commencing an
Application. A Certificate of Completion could be issued and required to be filed
with the issuing of an Application (if no counsel). The Application Form itself could
be amended to include information about family dispute resolution processes and
an acknowledgment that the Applicant (or Respondent) is aware of these options.
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Mandatory Mediation Intake/Triage:
FOLA supports early screening of cases for family violence as part of a triage
process and/or mandatory mediation intake process, as explained in more detail
below.
Mandatory Mediation:
FOLA supports parties participating in a mandatory mediation process, where
appropriate (i.e. where the mediation intake process does not identify any power
imbalances that cannot be reasonably mitigated or family violence). While it would
be ideal for this step to take place prior to the commencement of an Application, we
recognize that this may not be possible in cases where financial or other disclosure
has yet to be completed.
Some of our membership envisions Mandatory Mediation as one of 2 or more
family tracks; an accelerated and Case Managed track for Family Violence matters,
and another track for matters without Family Violence issues which promote more
engagement and discussion between parties, which includes mandatory mediation.
Which track parties will be assigned to will be determined through an early
triage/screening step before an officer with the authority to make orders regarding
interim support, parenting schedules, and other procedural Orders such as
disclosure and non-dissipation Orders (a Judge or a Family Master).
Family Law Information Centres and Mediation Services:
We understand that the existence of Family Law Information Centres and
Mediation services available vary geographically. FOLA supports the
standardization of services available, as well as the improved use and enhancement
of Family Law Information Centres and Mediation services.
Other Family Professionals:
We further support amending the definition of “service providers” under
section 149(2) of the Courts of Justice Act, to include parenting
coaches/counsellors, which will allow for future changes to the family court services
and supports to potentially include such professionals in high conflict parenting
cases, both prior to litigation, and during.
Bill Eddy, an America Lawyer and Social Worker, developed the New Ways
for Families paradigm, designed to reduce conflict and create skills which allow the
parties to ultimately make their own parenting decisions. For parties in litigation,
this involves Court managed (and ordered) counseling. Parties may also participate
voluntarily.
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More locally, in Simcoe County, a family law practitioner developed a
Cooperative Parenting & Divorce program focused on assisting parents to learn new
skills to co-parent as separated parents and to educate them on the effects of
conflict on their children. The response to this program by parties and the Judiciary
has been positive.
3. Would an early triage directing potential litigants to Alternative Dispute
Resolution (ADR) before the pleadings stage be helpful? Is this already
happening well now, from your perspective?
FOLA strongly supports and encourages the implementation of an early
triage process presided over by an official with the ability to make Orders (Judge or
Family Master) to address both procedural and interim issues including financial
disclosure, interim child and spousal support, non-dissipation, exclusive
possession.
Outside of Toronto, both represented parties and self-represented parties
face significant delay in simply being able to appear before a Judge for interim
support and parenting issues. It is not unusual for it to take up to 4 months to have
a Case Conference, which is a necessary procedural step before interim relief can
be sought.
This delay creates financial hardship for separating parents, especially those
who are already the most vulnerable. These include victims of family violence, those
with mental health issues, physical health issues, and those who have been out of
the workforce to raise their family. The delay also creates uncertainty and conflict
regarding parenting issues.
These delays are not mere inconveniences. They are ultimately extremely
harmful to the children of separating parents, effectively depriving them of financial
support and exposing them to conflict and uncertainty.
In the absence of a triage process, FOLA supports broadening the scope of
motions that may be brought before a Case Conference under Rule 14(6), or
clarifying what is considered urgent or hardship under Rule 14(4.2) of the Family
Law Rules, to allow such issues to be dealt with at an earlier stage. Notably, this
solution does not resolve the underlying problem of delay in obtaining dates to
appear before a Judge.
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4. Are there any unnecessary pre-trial procedures or motions that are taking
up a significant amount of court resources and/or are delaying time to
trial?
Eliminate the Mandatory Information Program:
At this stage the parties are already in litigation. Although information is
provided regarding ADR options, there is no anecdotal or other evidence to suggest
this has been a successful endeavour diverting parties from litigation. Further, while
the presentation provides very general information, parties are unable to benefit
from specific information (legal advice) related to their circumstances. For parties
with counsel, there is no benefit; ideally counsel will already have exhausted other
resolution options and will have counselled parties on their rights and obligations in
their circumstances.
Eliminate First Appearances:
The requirement that parties attend a First appearance for nondivorce/property matters is arbitrary and in any event unnecessary. The Rules
requiring First Appearances target all Ontario Court of Justice Matters, and similar
issues in the Superior Court of Justice where the Unified Family Court exists. The
primary purpose of the attendance is to establish whether the pleadings are
complete and to schedule a Case Conference.
It is submitted that this can be accomplished at the filing counter without
requiring the cost and delay of a procedural Court attendance.
Waiver of Case Conferences:
Case Conferences are currently used as an opportunity to resolve procedural
issues such as disclosure. FOLA supports the option for parties to waive a Case
Conference and proceed to a Settlement Conference, where both parties are
represented by counsel and there are no disclosure issues.
We may also consider supporting self-represented parties waiving Case
Conferences providing they have attempted mediation (or a Legal Aid Settlement
Conference) and there are no disclosure issues, which would be confirmed by a
certificate from the mediator.
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5. Are there any other steps the government could take with little or no cost
to reduce the time and financial burden of the family law process on
litigants and taxpayers?
Online Filing:
There is a current hiring freeze and Court staff are being packaged off. The
Ministry is also “cross training” Court staff to perform multiple functions. These
actions do not have the result of improving service for Ontarians. It is the experience
of our membership that it in fact creates inefficiencies.
Many jurisdictions experience significant wait times for parties to simply file
materials. This is time the parties are taking from work or paying someone to wait
to file on their behalf. Wait times can be longer than 3 hours. If a matter has been
inactive for any length of time, or if the matter is returning for a Motion to Change,
the file is usually stored off-site and must be ordered, which can take several weeks.
Further, it is not uncommon for files that are stored onsite to be missing for Court
appearances, either in whole or in part. All of this reflects poorly on the
administration of justice as a professional service, which service is responsible for
making significant life decisions for families.
An obvious, and inevitable, solution to this issue is online filing. Ontario has
already ventured into this option with joint divorces and in matters before the Small
Claims Court. The technological platform exists and is being used in other
provinces, notably British Columbia, as well as within Ontario in Federal Court and
Tax Court.
Expansion of Dispute Resolution Officer (DRO) Program:
Dispute Resolution Officers currently act in 9 locations in Ontario. They
preside over Case Conferences in Motions to Change. FOLA supports the
expansion of this program to other Court locations, as well as expanding their role
to include Case Conferences on Applications. The Ministry may also consider
creating limited authority for Dispute Resolution Officers to make provisional routine
procedural Orders such as disclosure Orders, which traditionally Judges have made
during Conferences, which would have the dual effect of preparing the parties for
the next Judicial appearance, while avoiding the need for Motions for basic
disclosure.