I applaud any efforts by the federal government to reform family justice. Justice Minister Jodie Wilson-Raybould has indicated that proposed new legislation will address family violence concerns, put the best interest of the children first, and improve enforcement of support obligations. I am glad to it has become a government priority.
The federal and provincial governments have recently committed significant funding for Unified Family Courts. However, to people experiencing separation and divorce, manoeuvering the complex, unwieldy litigation process is financially and emotionally exhausting. In my view, the expansion of the Unified Family Courts, or any changes to legislation, won’t help if we can’t get families out of the court system.
Litigating family matters is a special kind of hell. For anyone who has been through it, they know what I am referring to. I hope these new initiatives will mean that the government will put its money where its mouth is, and fund evidence-based alternatives to going to court.
There is a better way.
Many family lawyers, including me, have given up their litigation practice in favour of a collaborative approach to assisting families during separation and divorce. Separation happens in the context of significant emotional and financial upheaval. Intimate partner violence and power imbalances are often issues to be aware of. Families benefit from a wraparound approach to protect themselves and their children from the emotional harm of conflict.
In collaborative practice, the clients are in charge of the decision-making with the advice and support of their lawyers, neutral family professionals and neutral financial professionals. The process is built on the premise of respect, fostering positive parenting relationships and negotiating lasting agreements. This is different from mediation, which is also supported through the courts. A qualified mediator skilfully facilitates negotiation between the parties, but is neutral and cannot give legal advice. It does not usually include legal advisers, financial experts or family professionals to support the parties though the process.
The Collaborative Practice of Waterloo Region is leading the way in Ontario in addressing the very concerns articulated by the Justice Minister in announcing proposed reforms. Collaborative Practice of Waterloo Region has recently undertaken a rigorous review of protocols to streamline the process. Earlier this month, members participated in three full days of mandatory intensive training on screening for Intimate Partner Violence and power imbalances. The physical and emotional safety of the clients is a priority for the collaborative team.
The laws that govern separation and divorce are complex and often require the guidance of skilled and highly trained legal counsel. Lawyers are rigorous advocates for our clients, which in an adversarial system, pits one parent against the other, in a blood sport of trying to discredit the other person and inflate his or her own virtuous behaviour. I have seen good people expose their worst selves during separation. As a panel lawyer for The Office of the Children’s Lawyer, appointed to represent children in decision-making responsibility/parenting time disputes and child protection matters, I have seen how destructive the court process is on families and how people have crippled themselves financially and emotionally, sustaining court disputes that go on for years. People end up returning to court over and over to challenge or change the orders imposed on them.
Court-based solutions, no matter how better organized the Unified Family Court may be, will not address the issues of the cost of litigation and the emotional harm inflicted by an adversarial system.
Evidence-based alternatives to court, such as collaborative practice, should always be considered as an approach for separating families, and our governments should consider ways to support the process to make it accessible to all families.
People need to understand that there are options beyond court on the one hand and mediation on the other. While there is a place for both of these options in certain cases, in my view, most family law disputes benefit from a team approach in addressing all of the issues facing separation couples. When couples build their own agreement, with the assistance of counsel and neutral family and financial professionals, they learn strategies for making future decisions and get tailor-made, sustainable agreements that meet the unique needs of that family.
We have a two-tiered justice system in Canada. Those who can afford and sustain long drawn-out campaigns in court can do so. For those who do not want to go to court, the cost of a full team of collaborative professionals is a bargain in comparison, but it is not free. When we consider the frequency of marriage breakdown, and the spinoff costs in mental-health issues and the impact on children, government investment in consensual alternatives to court for middle to lower income families would be a cost effective way to support families in transition.
Diane McInnis is a family law lawyer in Waterloo. She is a trained collaborative professional, family mediator and on the legal panel for The Office of the Children’s Lawyer.
Diane McInnis is a family law lawyer in Waterloo. She is a trained collaborative professional, family mediator and on the legal panel for The Office of the Children’s Lawyer.