Presuming access to justice

Presumptions are a powerful tool in law. We use them as shortcuts to get around rigorous demands to produce evidence. They are there to save time and the resources of our courts and litigants. But even as we strive for a more efficient system of justice, the use of presumptions is not always appropriate in the family context.

The access to justice crisis remains, as we say, a wicked problem. It is a crisis with many causes which can only be approached effectively from all angles. One way is preventing legal problems through better education and informal justice strategies. Another is finding solutions to disputes that don’t involve the courts. Failing that, we must make the court process and its outcomes more effective and efficient for the clients.

This isn’t just good for the system — it is better for parties. In family cases, it is also essential for children. We know that exposure to conflict is a highly negative factor in healthy brain development and in healthy resiliency needed to adjust in a restructured family. 

At the same time, users of the justice system must understand the laws that apply to them. It is more likely to encourage consensual dispute resolution, and multiplied over the volume of Canadian families affected, this could have a significant impact.

But for that to happen, those laws must be well-crafted, which brings us to the proposed reforms to the federal Divorce Act, and in particular how it foregoes imposing a presumption of equal parenting time.

Both the CBA’s Reaching Equal Justice Report, to which I contributed, and the national Action Committee on Access to Justice, on which I now sit, have proposed formal and informal justice strategies that would make it easier for family members to resolve their disputes.  Their findings led to a recommendation that substantive family laws be “simpler and offer more guidance by way of rules and presumptions, where appropriate.”

As noted by the Action Committee, presumptions have, in family law and other areas, worked to reduce the number of issues requiring litigation for many families. 

The Federal Child Support Guidelines are an excellent example. Parties can apply the guidelines themselves, arrive at accurate amounts, and avoid the need for court intervention in many cases. Presumptive division of property in married partnerships has also appropriately narrowed the range of issues that can be litigated. Similar principles are now applied to unmarried parties in more provinces, using a rights-based approach to define the default by set criteria. These are informed by policy about equitable financial sharing in family matters, thereby dispensing with the need to litigate those basic principals for every case.

Presumptions in parenting, however, work differently.

Indeed, presumptions rely on assumptions. For example: sharing finances is the fair or right outcome when parties have children.

But assumptions can be incorrect, which can render the presumption ineffective as a legislative norm. This is often the case with parenting. If the underlying policy goal is not “equality” from the parent’s perspective, but the best interests of each individual child — something that is assessed on a case-by-case basis — then a presumption is inappropriate.

After all, dividing parenting responsibilities and time is not the same as dividing the parents’ pie, as we say in interest-based discourse.

For this reason, a presumption in this context does not level the playing field between the parties, as it might for financial issues.  Here it creates an imbalance of power in favour of the parent who “wins” an equal share of parenting, even if that might not be what they earned through their parenting history.  At any rate, the burden is on the other parent to prove that an alternate arrangement is better. That parent may be disadvantaged as they have spent more time parenting and have lesser financial resources. The real risk is that the presumption often works against the interests of children.

This kind of presumption also only operates in situations when the parents have not consented to an arrangement. The irony is that it is imposed in the wrong circumstances.  It also trumps interest-based mediation and collaborative processes, in which the children’s interests are the starting point of the conversation. These are situations where appropriately neither party is assured of an outcome in their favour until the interests analysis is undertaken. 

Also confounding an interests perspective is that the titles of custody and access have become fraught with the baggage of winning and losing. They imply a “greater than” and “less than” label in parenting status. This has an impact on how parties approach resolving disputes. British-Columbia and Alberta have introduced reforms that allow parenting to be defined by the nuts and bolts of the parenting plan, rather than labels which may trigger resistance by parties.

Those provincial reforms have shown us that the right language can underscore this interest-based approach. But the shift in thinking has been slowed by the continued existence of the “custody” language in the Divorce Act, which should be about to change.  This will help clear the path for efficient resolution strategies.

In developing parenting plans, we must assess the correct factors from the child’s best interests perspective. In the absence of a presumption – a default outcome, if you will – parents have no choice but to look at their family, and factors set out in law, such as the value of time with each parent, to guide them in assessing their children as individuals. Any principle calling for maximum contact with each parent, for example, if considered alone rather than as one factor, further undermines that kind of assessment.

The Action Committee noted that presumptions were helpful “where appropriate.” Whether the goal of access to justice is met by a presumption depends on the nature of the issue, including “the seriousness and impact of potential outcomes.” Children can be seriously impacted, positively or negatively, as their parents and courts make plans for them. Fortunately, the proposed changes to the Divorce Act do not impose a presumptive regime of equal parenting time. In my view, the federal government got this critical issue right.

Indeed, what may be efficient for the system is not necessarily better for the people.  Particularly the littlest people.