Fixing What Wasn’t Broken

Once upon a time, Ontario had two different courts that handled family law cases.  Each court had its own rules and forms.  In provincial court, the forms were particularly simple affairs because some litigants couldn’t afford lawyers and had to complete the paperwork on their own.  The financial statement, for instance, was only three pages long.

Things worked reasonably well under this system for many years—or so I thought.  In my county, Hastings, litigants could get a motion heard in either court within a week.  The limiting factor was their lawyers’ availability, not the courts’ availability.

But in 1999, Ontario introduced new rules for the provincial courts and what was then called the Unified Family Court, which operated in a few locations around the province.  The rules were…impressive, let’s just say.  The old provincial court rules had taken up 30 pages in my paperback volume of consolidated statutes.  The new ones took up 75.  The forms, too, proliferated both in number (from 71 to 105) and complexity (the financial statement was now 10 or more pages long).

But the paperwork wasn’t the only problem.  The procedure itself began bogging down.  You couldn’t bring a motion without having a case conference first.  Matters that  could previously have been adjudicated within a week or two were now languishing unresolved for a couple of months.  Lawyers who had previously been spending one morning a week in provincial court were now spending all day, sometimes until 6 or 7 p.m.  There were so many extra documents and court appearances that clients’ retainers were quickly exhausted and more litigants began appearing unrepresented.  Where one duty counsel had previously sufficed in Belleville, two or even three were now needed.

The government kept proposing to bring the new rules to Superior Court, too, but encountered considerable resistance from lawyers and judges in locations where the old rules were still functioning efficiently.  Unfortunately, resistance proved futile in halting the Borg-like march of the Family Rules Collective.  The proclamation has been made: Ontario will be assimilated—all of it.  In fact, by the time you read this, it’s scheduled to be a fait accompli.  This column is not a call to arms, but a lament. 

The resistance is not simply a matter of lazy lawyers refusing to learn something new.  We’ve already learned the new rules, because most family practitioners appear at least occasionally in both courts and sometimes in “unified” courts in nearby counties.  On the contrary, the resistance arises precisely because we now have intimate first-hand knowledge of both systems, gained through almost five years’ experience.  The reality is, we haven’t found the new rules to be an improvement.  Most of us think they’re a deterioration.  When our imminent assimilation was discussed at a recent meeting of the Hastings family bar, not a single lawyer voiced approval.

Wondering whether this could be merely a local phenomenon, I canvassed some colleagues in Toronto.  Only one said he liked the new rules, although once he got started on the subject, he expressed numerous criticisms.  The others thought the new rules were responsible for growing backlogs and delays.  I heard estimates of between 6 and 12 weeks before anything could be accomplished.

Everywhere I inquired, the preponderance of opinion seemed to be that the new rules were not a boon to either lawyers or litigants.  So what was impelling the government to impose them upon the whole province?  Why were they planning to substitute a worse system for a better one? 

I decided to ask the Attorney-General’s office.  Specifically, I asked whether some study had been done, or some statistics had been gathered, demonstrating that the new rules were better in some way—any way.  Were more cases being resolved?  Were cases settling faster?  Was the process cheaper?  Were litigants happier?  Were children adjusting better?  In short, what evidence existed that this system was an improvement? 

The A-G’s office pow-wowed over my question for three days, then e-mailed a 715-word essay (for comparison, this column contains 856 words).  The short answer was: no, there were no studies.  But my correspondent then proceeded to elucidate the virtues of the rules.  They were designed to ensure a fair process for all parties, save expense and time, allocate court resources appropriately, encourage early settlement, improve disclosure, prevent frivolous actions and so on. 

Lovely.  Who could possibly oppose such worthy goals?  There’s just one problem. There’s no evidence the new rules are actually achieving these goals.  The evidence largely seems to point in the opposite direction.

While the old rules were perhaps not perfect, it should have been incumbent upon those wishing to fix them to demonstrate, after having tried out their fix for five years, that it actually makes things better.  If it doesn’t, the obvious course of action is to postpone implementing the fix until they can demonstrate that it’s an improvement over what already exists.

Meanwhile, many lawyers are turning to collaborative family law as a means of avoiding the courts altogether.  That’s my strategy too.  I just hope the government doesn’t interpret the reduced case load as a sign that it has done something right. 

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