Fixing family law

The family law system in Canada has been described as “judicial ping pong,” with cases bouncing from provincial courts to superior courts and back again in a costly, drawn-out process that delays justice and leaves families in limbo.

Eric Sadvari chairs the Canadian Bar Association’s family law section and says members are committed to unified family courts nationwide. While they will continue writing to ministers and addressing the Justice Department, he “doesn’t expect this to necessarily happen in my term.”

To improve access to justice for families, in 1974, the Law Reform Commission of Canada recommended creating unified family courts (UFC) at the Superior Court level to offer "one-stop” family law justice.

Fifty years later, an Advocates Society report last year found that the rollout of UFCs has been partial, leaving Canada’s family court system “in crisis” given the “ping pong” model.

While British Columbia, Alberta, and Quebec have no UFCs, other provinces have only partially implemented them. Entire regions of Saskatchewan, Manitoba, Newfoundland and Labrador and Ontario, including Toronto, Canada’s largest city, have no access.

The report found that family law cases dealing with the safety of family members, children’s health and well-being, parenting arrangements, housing, and money for necessities, like food, are left up in the air.

Quebec recently tabled legislation that proposes a new approach — creating a unified family tribunal (UFT) within the Quebec Court, whose judges are named by the province.

This won’t fully solve the problem, however, as cases involving divorce and family property fall under federal jurisdiction and only Quebec Superior Court can adjudicate.

Justice Minister Simon Jolin-Barrette acknowledged that Bill 91 and creating the tribunal is just a “first step.”

“We are going to work with the federal government to integrate all this because constitutional considerations should not be a brake on the ease, accessibility and efficiency of the system of justice,” he told reporters after the bill’s first reading on February 25.

Jolin-Barrette advised outgoing federal Justice Minister Arif Virani of his intentions before the bill was tabled.

“The objective is to offer a path that is more simple, less costly and faithful to Quebec’s distinct social values,” a spokesperson for Jolin-Barrette wrote in an email.

“Discussions are continuing in this sense.”

In a statement, an aide to Virani said the federal government “looks forward to engaging with the government of Québec on its work to improve access to justice in family law matters. Some of the issues being raised require further review and analysis.”

Without jurisdiction over divorce and family property issues, the UFT will deal with issues arising from parental union, a new concept legislated by the province last year, which comes into force on June 30, as well as cases involving civil union and surrogate parenting.

Parental union is a unique Quebec concept for unmarried couples with children. An estimated 42 per cent of Quebec couples are unmarried.

In a brief submitted to the Commission on Institutions of the Quebec National Assembly, the Quebec branch of the Canadian Bar Association noted that Bill 91 was a “step in the right direction,” but it could raise complex constitutional questions.

To resolve this complexity, the CBA noted the suggestion of the Honourable Jacques Chamberland, a retired Quebec Court of Appeal judge, to create a conference of tribunals in Quebec family law, with a parity structure including the Quebec Superior Court and Quebec Court.

“It is imperative that the government take a serious look at the issues identified to avoid creating a two-speed family justice system, on one hand a well-financed Superior Court with trained judges available only for married and common law couples, another in Quebec Court offering fewer services to civil union and parental union couples,” the brief stated.

Guillaume Rousseau is a law professor at the Université de Sherbrooke and co-author with Sébastien Proulx of the Proulx-Rousseau report, prepared for Premier François Legault to outline ways the province can increase its powers and become more autonomous.

“Quebec must take steps to increase its autonomy,” Rousseau says.

“Giving the Quebec Court a larger role in family law after the creation of parental unions is exactly in that perspective.”

As a second step, the Proulx-Rousseau report proposes a bilateral amendment to the Constitution, as Quebec and Newfoundland and Labrador have done in the past to eliminate denominational schools in both provinces.

Quebec would seek a bilateral amendment to Section 98 of the Constitution Act of 1867, which now states, “The Judges of the Courts of Quebec shall be selected from the Bar of that Province.” The proposal would add language making clear that Ottawa would choose judges named to the Quebec Superior Court and the Quebec Court of Appeal from a list prepared by the province.

“Superior Court judges named by the federal government from lists prepared by Quebec; in that case, we can create a family court with Superior Court judges,” Rousseau says. 

“That would be less problematic politically for Quebec’s autonomy. If there was Quebec influence in the naming of Superior Court judges, that solution would become more viable.”

Jolin-Barrette has said 85 per cent of family law disputes are already solved by mediation, so the UFT would simplify the course of justice in cases of family, conjugal, or sexual violence and ensure awareness of criminal charges that could impact civil procedures.

Quebec’s Regroupement des maisons pour femmes victimes de violence conjugale, a strong supporter of federal efforts to create the Criminal Code offence of coercive control in intimate relationships, is not impressed by Bill 91’s proposal for compulsory mediation.

“What that 85 per cent means is that in situations of conjugal violence, coercive control, the women feel forced, pushed by this process,” says Regroupement lawyer Justine Fortin, noting that parental union applies only to couples with children.

Regroupement’s Louise Riendeau says often women in these situations must abdicate their rights to calm down their spouse.

In mandatory mediation, a woman victim could waive her rights to alimony and a share of the family home sale to get a settlement more quickly.

“Some women will go into mediation because it is free, and they don’t need to pay a lawyer,” Riendeau says. “Yes, there are agreements, but agreements that are absolutely inequitable in situations of conjugal violence.”

Rollie Thompson is a family lawyer with Epstein Cole and an emeritus law professor at Dalhousie University who still gives family law courses to judges and lawyers. He’s a UFC fan and says before they came to be, judges were often unschooled in family law, not interested in judging family issues, and impatient at times with lawyers presenting such cases.

“That doesn’t happen in the UFC. You have judges who want to do what they are doing. Some of them are extraordinarily good at doing it,” he says.

“It’s really fun to be in front of a judge who says, ‘I’ve heard from both of you, but what about this?’ And you go, ‘Oh yeah, we never thought about that.’ That’s the knack of a specialist family judge.”

Thompson describes Bill 91 as “an odd creature” given that under the Constitution Act of 1867, marriage and divorce are exclusive federal jurisdiction. Parliament and the legislatures “cannot subtract either divorce or property from the Superior Court.”

“Calling it a unified family tribunal is somewhat misleading,” he says.

“I don’t think the Court of Quebec can do that, no matter how many laws are passed by the National Assembly. My guess is that if the federal government tried to hand off divorce…it would be struck down.”