"It is accepted, even by those who work within it, that Ontario’s family law system is utterly broken", writes Christie Blatchford in an article entitled, "Getting to the root of Ontario’s family law mess".
Agreed. I think you would be hard pressed finding anyone to disagree.
The vicious child custody battles and their shocking legal fees, and the endless losing battles against a former spouse who is seemingly impervious to reason are stories well known to everyone who works in the system. What is also shocking and frustrating, though, is that the blame for this is laid at the feet of lawyers, most of whom are not seeking to profit from the misery of others.
In fact, the suggestion that lawyers are deliberately and routinely inflaming family law clients for self interest, is ridiculous, as the economy declines and people have less money to spend on "luxuries" like proper legal representation. In fact the statistic cited is that "57 per cent of family law litigants don’t have lawyers and are self-represented in court." This is not because they have run out of money to pay for their previous lawyers, it's because they couldn't afford a lawyer in the first place, and the vast majority of people are not eligible for Legal Aid assistance.
Omar Ha-Redeye, Blatchford says, believes that holding lawyers more accountable for their actions will fix things. Not for the 57 percent of family law litigants without representation, I'd like to point out.
Here are some real ideas about how to fix things:
- Help more people get access to legal representation by increasing Legal Aid Eligibility on a wide scale through the use of contribution agreements (where people contribute to their Legal fees, but have a portion of the fee subsidized according to their income level)
- Allow very few people with civil cases to have their cases fully funded by Legal Aid. The absence of an economic interest in the proceedings can promote unreasonable behaviour by the parties.
- Fund the Office of the Children's Lawyer ("OCL") which is often a neutral voice in litigation, can confirm or discredit wild claims, and serves to ensure that the children have a voice in the proceedings. Parties to litigation are often also on better behaviour when an OCL is involved. The OCL frequently rejects files because it does not have enough funds or enough lawyers.
- Modify the law to uncouple custody of a child from primary residence, so that the children can live full time with their mother, but the father has final decision making authority, or vice versa. This would be very controversial, but family law lawyers frequently see one party who is bent on power and control, for example blocking access at every turn, and another party who would ensure that court orders are adhered to more fairly and consistently.
- Punish flagrant breaches of court orders more readily, through changes to custody - not necessarily access or primary residence - costs, and police enforcement.
The current state of the law, where custody is often an upper hand seized by one party, and wielded with great power, is promoting cut-throat litigation and a very unhealthy state of affairs for many people. Lawyers have a duty to advise their clients accurately about the law. They would be professionally negligent to do anything else.
It's not lawyers who have to change. It's the system.