Funding for family law research is everyone’s problem

The very first secular divorce court was created in 1857 in England. In 1875, the Court for Divorce and Matrimonial Causes merged with the High Court of Justice, leaving us more than 150 years later with the problem of having to resolve family breakdown with the same dispute-resolution mechanism that applies to motor vehicle accidents.

“You cannot be a good family law lawyer unless you have a basic grasp of things like attachment theory, family systems dynamics, the psychology of grief and the divorce process, the impact of conflict on children, the ages and stages of child developmental psychology and it goes on and on and on,” says John-Paul Boyd, principal of John-Paul Boyd Arbitration Chambers in Calgary. But confining family justice systems to a civil justice framework risks putting people who are experiencing a wide array of issues in the hands of “precisely the people who are the least expert” to deal with them. “We all went to law school, including the judges; that doesn’t equip us to make difficult decisions about parenting problems or the real impact of an addiction or another mental health disorder on a child.”

One of the keys to ensuring that the people needing access to justice in family law get it is adequate research that enables us to tell when a program is working and what else needs to be done. Right now, says Boyd, we don’t have the answers to the simplest of questions – for example, what’s the average length of time between the commencement of a family file and when it appears in court? No one knows. Does the new program that has people seeing a judge for an early evaluation before filing the first application keep more disputes out of the courts?

“You can’t answer that, you can’t say whether or not this pilot project is working,” says Boyd. “It’s really only when people are thinking about innovation or thinking about reform or trying new pilots or are studying these fundamental ideas about the difficulty ordinary Canadians have about accessing justice that they start looking for information and they discover that the cupboard is empty.”

Research is difficult to conduct and expensive to fund, and nobody thinks the money should come out of their pockets, says Boyd, the former executive director of the Canadian Research Institute for Law and the Family, which recently closed due to lack of stable funding.

One of the three resolutions being presented at this year’s Canadian Bar Association AGM calls on the CBA to urge governments at all levels to allocate sufficient resources to family law research.

Boyd cites a report from the Canadian Forum on Civil Justice saying the knock-on costs for family law outside the justice system “were roughly three times what we spend on legal aid.”

Having all departments and agencies affected by family disputes at all levels of government contribute to funding would “create a mandatory bucket of money available for research on an ongoing annual basis that would be available and would not be subject to the discretionary influence of the minister of the day,” says Boyd.

Universities clearly have a stake in – and the money for – research, and law foundations should also be tapped to create a national pool of research funds.

“Ultimately the problem we have and have always had in this system is that everybody points the other way when you ask them for funding,” says Boyd. “This is something that has a massive social impact, and yet everybody’s so busy passing the buck, probably because of the way family law is labelled as being this tiny justice problem, and not really what it is ultimately, which is a psychological, social and economic problem. Who’s responsible? We all are.”

What do you think about the resolution? This year we’ve set up a discussion board where you can have your say – all you need is your member number to log in. If you want to propose an amendment to the resolution, send it to tamrat@cba.org no later than Jan. 25.