Reforming the Family Judicial System in Canada
The adversarial nature of family law often places a heavy emotional burden on the families it is meant to serve – a burden which has only grown as litigation becomes more time-consuming and the statutes that govern it begin to show their age.
Below, we hear qualified arbitrator Cheryl Cordeiro’s thoughts on the obstacles facing Canadian families and the benefits that alternative dispute resolution can bring to what is all too often a hostile process.
What are the issues that currently face family law in Canada? Has the COVID-19 pandemic exacerbated this in a significant way? Are there other factors involved?
As a modern, 21st century society, we need to recognise that the current family judicial system needs to be updated. In many cases it is inefficient, time-consuming and destructive to families and children. There are deep structural problems that persist in how our justice system handles family disputes and I feel something must be done, given that the need is urgent and is only growing worse.
Our current judicial system is predicated on an adversarial approach developed in the Middle Ages that makes perfect sense when resolving disputes of the arm’s-length parties to accidents, or shareholders’ grievances. However, this adversarial and Arcadian mechanism for dispute resolution has disastrous implications for family members with children who must maintain a functioning relationship with each other into the indefinite future.
There are two factors that contribute to these implications. First is the procedure for which family law disputes must follow to litigate a resolution, and second are the antiquated laws and statutes that are applied to these cases. Our ligation system relies heavily on Family Law and Divorce Acts, which were written in the mid 1980-1990s. Resolutions for disputes of custody, access, support payments and family net worth were written with an ideology, knowledge and reasoning that is over 30 years old. Since the construction of these Acts, we have seen a magnitude of shifts within the traditional family cohort, gender roles and responsibilities.
Our current judicial system is predicated on an adversarial approach developed in the Middle Ages.
The current procedures of litigation, coupled with federal and provincial statutes, set the stage for the perfect storm for continued family entanglement in conflict where children end up as collateral damage, since none of the Acts provide statutes or guidelines to support families and reduce the risk of hostility and continued conflict after litigation has ended and are inundated with confrontational language and blame assignment. Typically, neither bar nor bench has much training in the sensitive psychosocial implications of family restructuring after separation or the constructive management of family conflict. Nor are they particularly well-equipped to handle delicate issues like addictions, attachment disruption or allegations of abuse with any efficiency, which are more often the case the foundations for which family law motions are built upon.
Alberta was the first to abandon conflict-laden terms like “custody” and “access” in 2005 in favour of presumptions of parental guardianship and child-centred language addressing “parental responsibilities” and “parenting time.” British Columbia has also followed suit in 2013. Now, Bill C-78 proposes sweeping amendments to the federal Divorce Act that follow the paths blazed by Alberta and British Columbia. It greatly expands the list of factors to consider in assessing the best interests of children.
However, the radical improvements proposed by Bill C-78 are not going to reduce the number of litigants without counsel or increase the funding available to legal aid. Neither will they reduce lawyers’ fees, increase the number of family law lawyers in underserved areas of the country, or reduce the complexity inherent in the common law system. More importantly, they are not going to do anything to address the grotesque delays plaguing the judicial resolution of family law disputes. Data collected by the federal government shows that it is taking longer and longer to get to trial, as that more than half of Alberta divorce files were four or more years old in 2015.
The current procedures of litigation, coupled with federal and provincial statutes, set the stage for the perfect storm for continued family entanglement in conflict.
All the above shortcomings are taking a toll on the efficiency of a court system dealing with a growing backlog of cases and the current crisis of the COVID-19 pandemic has further aggravated an already overwhelmed system. The pandemic has had crippling effect on family litigation, as the court system has been unable to implement a mechanism to sustain and move forth with motions, hearings, and trials within the virtual realm.
How do you expect to see the Canadian family law sector change in 2022 and beyond?
It seems to me that we must approach family justice from a fresh perspective, and critically examine all potential alternatives, in fact, we should consider removing family law matters from the courts altogether. These are disputes that could be moved into a specialised administrative system offering both adversarial and non-adversarial dispute resolution alongside, along with providing education on parenting after separation, child development, conflict management, and social services such as housing and employment support, financial and mental health counselling, parenting assessments and similar services.
Such an administrative system should be interdisciplinary and explicitly aimed at promoting the well-being of children, reducing conflict, and promoting parents’ ability to cooperate with each other. Its rules, policies and forms should be written in plain language, tailored to the unique needs of families living apart and the extent of the adversarial and non-adversarial processes provided by the tribunal and commission should be genuinely proportionate to the circumstances of each family, and complexity of the issues in each dispute.
Typically, neither bar nor bench has much training in the sensitive psychosocial implications of family restructuring after separation or the constructive management of family conflict.
What measures regarding compulsory mediation in family law currently exist? Are they effective?
When the FLA 1996 was presented to Parliament, The Law Commission put forward proposals for reform with the main purpose of encouraging mediation. Mediation would allow parties to eliminate allegations of fault, reduce hostility and further resolve their issues – such as childcare and settlements of a monetary nature – before legal intervention. Mediation has been encouraged by governments for over twenty years, which is becoming a more standard practice within family law litigation.
It is often the mandate that, prior to litigation, the parties are required to attend one session of mediation. However, adoption of mediation in this format disregards the very foundation upon which mediation is built upon: a voluntary form of dispute resolution founded on the pillar of self-determination. Thus, utilising and implementing mediation within this context generates hostility, as neither party is required to participate in court-mandated mediation past attendance.
As Janet Walker highlighted, “mediation is perceived as supportive, facilitative, non-conflictual: everything that is inherently good in a dispute resolution process”. However, in reality, mediation within this format can generate hostility due to the fact that in some marriages there is clearly fault, and it would create further confusion if this could not be referred to. There is no other area of law where such attempts are made to ignore causation and blame.
Consequently, most family law clients are left feeling like they are left with no other alternative but to engage in the costly and time-consuming litigation process, adding to the enormous number of litigants entering the court system without the benefit of counsel – some by choice but most by necessity. In a 2013 survey, Justice Gray found that sheer volume of such litigants, as high as 80% in some jurisdictions, had a negative impact on the efficiency of the court system, as lack of familiarity with the law, court processes and the rules of evidence increase the number of poorly founded claims, the number of adjournments and the length of time to resolve both interim applications and claims.
Please tell us a little about the effective differences between litigation and arbitration in family law. What are the relative costs and timeframes involved? What common misconceptions about mediation and arbitration would you like to dispel?
Arbitrators act as private judges; they hear each side’s story in the form of written or oral evidence and make a binding decision by applying the law to the facts. People choose arbitration when they need a binding decision made but do not want to go to court. On the surface a judge and arbitrator are the same, as they both have the role of being a neutral third party that imposes a ruling to a dispute between two disputing parties that are unable to collaboratively come to a resolution. Moreover, both arbitration and litigation are meant to be adversarial in natural, as neither party are expected to get along and “both processes follow the principles of fundamental justice, thus they are designed to be fair to both parties and that both parties have the right to make their case and reply to the case against them.”
Arbitration is the more flexible of the two, as a court of law is governed by an extremely formal process in addition to statutory and procedural rules; whereas the arbitration process allows the parties the opportunity to establish rules and limits for pre-hearing exchange of documents or interrogation of witnesses, the way an arbitration hearing will be conducted and the level of detail to be included in an arbitration award.
Not only do litigation and arbitration differ when it comes to procedural rules, they also differ in the selection of the neutral third party, which is one of the greatest benefits of arbitration. This is a highly important aspect of any dispute resolution. Within family law, litigation cases are assigned to judges by a random process and cases are scheduled for trial based on the availability of the court calendar. Being able to select your arbitrator is a great benefit to both parties, as they can choose someone who not only is an expert their area of need but also has a great curriculum vitae of cases that are similar in nature to the disputing parties. This will not only help ensure that both parties will receive a fair and balanced award, but it will also cut down in costs, as the arbitrator will need less time to research current case law that applies and supports their decision and award.
Most family law clients are left feeling like they are left with no alternative but to engage in the costly and time-consuming litigation process.
Furthermore, in many courts, no individual judge is assigned to a case in its entirety and, therefore, multiple judges may be involved in adjudicating pre-trial disputes, whereas in arbitration any pre-hearing disputes between the parties are decided by the same arbitrator(s) that ultimately decide the case. This is a great benefit to both parties, as the same decision maker is privy to all matters of the case, helping to expedite the matter(s). This advantage of arbitration does not only help minimise the current conflict, but also help to reduce the potential for further conflict by containing the scope of the hearing and admissible evidence within the confines of the issues put forth for resolutions and highlight that the disputing parties may be more agreeable on certain topics.
Consequently, these measures create a mechanism that is more cost- and time-efficient and that has a greater advantage at reducing the hostility and damage that is inflicted upon families, so that these families can potentially move forward in a more collaborative and cooperative unit well into the future. After all, co-parenting is not a competition between two homes, but a collaboration of parents doing what is best for the kids.
About Cheryl Cordeiro
Tell us a little about your journey into law. What first drew you to your practice?
With a degree in Psychology and a Bachelor of Education from York University and having completed the educational components, graduating magna cum laude for my Qualified Arbitrator (Q. Arb.) and Associate Mediator designations with ADRIC, ADRIO and OAFM further complements my more than 17 years of experience within the realm of children, education and families.
I founded Cordeiro & Associates after having lived through the litigation process of divorce, mediation and finally arbitration. I have personal experience with how the litigation process can exacerbate and perpetuate the current conflict that led to the marriage breakdown, as well as fostering new conflicts which can forever plague the co-parenting relationship. I know from experience that good faith, negotiation and interest-based bargaining can often save people thousands of dollars in legal fees, allow relationships to be mended and achieve lasting results.
Part of your work involves teaching up-and-coming arbitrators. Can you tell us more about this aspect of your practice? What qualities would you say are essential for an effective mediator?
Along with practicing arbitration and mediation, I also am an instructor, teaching up-and-coming arbitrators and preparing them for the Qualifying Arbitrator’s exam with the Alternative Dispute Resolution Institute of Canada (ADRIC). It is equally important to ensure that our arbitrators are skilled, effective listeners and precise note-takers. Arbitrators and judges are only human, and like all humans are subject to our own perceptions of the world and situation. Therefore, it is vital that arbitrators are aware of their personal perceptions of the world, as our perceptions are grounded in our morals, backgrounds, upbringings, schemas and experiences which guide us in our decisions.
Thus, to ensure that we maintain our ethical code and ensure that the founding pillar of arbitration, natural justice, is always prevailing, we must constantly ask ourselves if we are judging evidence and testimony through the lens of our own personal perception or through the lens of natural justice and weighing it against our jurisdictional law statues and not against our own morality.
Can you tell us about your plans for the future?
In the future I would welcome the ability to work more closely with the Ontario Bar Association ADR section. I would also like to begin to collaborate with community foundations such as the Barbra Schlifer Commemorative Clinic, as their practices are grounded in a reflective practice that continually examines power imbalances and builds our collective awareness and ability to work towards equitable responses and solutions, along with respecting a promoting self-determination and autonomy. I want to contribute to a vibrant family dispute resolution community and help families come to a resolution governed by the principal of “do no harm” so that families can obtain a fair resolution without unnecessary expense or delay, and one that supports them in their journey to freedom from violence, conflict and further trauma.
Cheryl Cordeiro, Founder
Cordeiro & Associates
67 West Park Ave, Bradford, ON L3Z 0A7, Canada
Tel: +1 866-292-1622
Cordeiro & Associates offers compassionate mediation, arbitration and parenting co-ordination services in addition to mental health support. Built from the ground up by Cheryl Cordeiro based on her own experiences of family litigation and its profoundly negative effect on children, the firm aids families in settling disputes outside of the courts and in a less acrimonious manner.