As a quiet, but steady undercurrent of judicial discontent emerges from the Province's courts, it is becoming apparent the status quo is increasingly unsatisfactory, if not yet wholly untenable.
Three unrelated, recent comments by Ontario judges will illustrate the fork in the road we may be approaching.
Collectively, they make a compelling case for change.
In Shaw v. Shaw,  O.J. No. 1111, Mr. Justice Bruce Pugsley of the Ontario Court of Justice at Orangeville was highly critical of the procedural and philosophical disconnect between Ontario's criminal courts and family courts in cases of family breakdown involving allegations of domestic violence:
"the events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace.
These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact.
Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of, or access to, the defendant's children without any consideration of the factors that this [family] court must apply by law before determining incidents of custody or access.
This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted.
I observe, however, that the damage of which I speak is not from the laying of the charge - this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties.
Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system - from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency - effect the lives of the members of the defendant's family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved.
Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit."
Secondly, I'll revisit a recent comment by Mr. Justice Joseph Quinn, of the Ontario Superior Court of Justice at St. Catharines, that directly questions whether our Courts are an appropriate forum at all for determination of custody and access disputes:
The parties have gorged on court resources as if the legal system were their private banquet table. It must not happen again... Both sides have shown an inability to abide by court orders such that their access to this court should be restricted by the requirement to obtain leave.
Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law.
Finally, I'll once again highlight the sharp criticism levelled on March 13, 2007 by Madame Justice Margaret Scott regarding the chronic shortage of judges at the Ontario Superior Court of Justice (Family Court Branch) at Newmarket:
It is obvious that the system here is so judicial-resource poor that it is in crisis.
Taken together, these comments demonstrate the degree to which family law increasingly finds itself on the very fault line of Ontario's overburdened justice system.
A recent report of the Ontario Bar Association, Getting It Right, recognized many of these issues and responded with a call for sweeping, but significantly costly, changes to the administration of justice in the Province, with particular emphasis on family law.
While the report, in fact, does hit many of the right chords, a truly practical solution may well be considerably simpler than the expansive measures contemplated by the OBA.
As our judges now begin to openly question the very premise that our courts are optimal, able or even suited to deal with the very serious consequences of family breakdown and its many complexities and subtleties, the time may be drawing near for our legislators to reconsider whether mediation and alternate dispute resolution should be the norm, rather than the exception, in the Province's family law cases.
Mandatory mediation is by no means a new or novel process in Ontario.
Since January 4, 1999, Rule 24.1 of Ontario's Rules of Civil Procedure has required mediation of all civil cases in certain designated jurisdictions within the Province. Many mediators report an overwhelming rate of settlement in cases mediated pursuant to this Rule.
Settlement rates are particularly impressive in mediations of wrongful dismissal proceedings, in which the emotionally-charged consequences of soured, employer-employee relationships find their way to Ontario's courts for resolution.
Further, voluntary mediation services are provided free of charge to the public in many Ontario family courts. Legal Aid Ontario also offers family law mediation in cases where at least one party is legally-aided.
With this in mind, is it not odd that family law cases continue to be legislatively excluded from the Province's mandatory mediation regime?
I would argue it is time for that to change.
Mandatory family law mediation would save parties costs, divert numerous cases from the Courts, reduce the strain on the Province's judicial resources, and result in many expedited, satisfactory settlements outside of formal, court processes.
Beyond that, it will in many cases mitigate the human cost of protracted family law litigation, and secure child-centred, appropriate resolution of many parental conflicts that could readily be avoided by the enhanced communication that is carefully developed through mediation.
Mediation is directed at resolving issues regarding the on-going care and management of children following parental separation or divorce such that a parenting plan is developed or specific issues are resolved. These may be referred to as child custody and/or access maters. In mediation, parents retain control of the outcome.
The role of the mediator is to facilitate discussion, help generate options and educate on matters of concern to the well-being of the children in the context of the parental separation/divorce. The mediator will endeavour to keep behaviour safe and civil to allow appropriate negotiation between the parents.
Parents may be seen together or separately depending on the level of conflict and matters of concern. If seen together, the mediator can separate the participants when necessary and move between separate rooms if required.
A developmental perspective is taken in structuring parenting plans so parents are better prepared to handle natural changes that occur with time.
While there will remain a small minority of family law cases that are legitimately ill-suited for mediation, the vast majority of family law cases would benefit from a requirement that, absent emergency, alternative dispute resolution must be undertaken - particularly in any contested matter involving children - before any court proceeding is litigated in earnest.
If a party seeks to be exempted from such a mediation process, the burden of demonstrating reasonable grounds to a court for such exemption ought plainly to be on that party.
In obvious cases of serious domestic violence, surely this burden would be reasonably simple to meet.
In his article, Are you thinking of Mediation to settle custody and access matters? Mr. Direnfeld elaborates on the alternative dispute resolution process and the special care that mediators must demonstrate in cases of serious domestic violence and abuse:
Mediation is an alternative to court.
Whereas in court the parents are bound by the decision of the judge, in mediation the role of the mediator is to help parents communicate and determine their own solution to the parenting of the children – a mutual agreement.
A mediator is a specially trained professional usually with expertise in child development, family dynamics and in helping people communicate. Some mediators will share their opinions and offer suggestions in the interests of the children while others may concentrate mainly on helping the parents communicate.
.... Mediation is a good and reasonable approach to developing and settling parenting plans, but there are certain instances where mediation is often not recommended. Generally mediation is not recommended where a parent is known to be violent or abusive. If parents want to enter mediation where there is a known history of violence or abuse by either parent to each other or any of the children, they are advised to be certain that the mediator is aware, agrees to continue and has specialized knowledge or training on such issues.
Will mandatory mediation of family law cases soon make a belated entry into the mainstream of Ontario's family court system?
While logistical and practical steps would be necessary to ensure the availability of an adequate contingent of trained and qualified mediators, formally mandated alternative dispute resolution in the province's family law system is long overdue.
Beyond that, if Ontario were to join the 11 U.S. states and the District of Columbia that have enacted legislation providing for a rebuttable, statutory presumption in favor of joint custody upon marital breakdown, a cultural sea-change might well emerge in the disposition of the Province's family law proceedings unlike that ever seen previously...
But that's a whole different topic, for another day.
- Garry J. Wise, Toronto