Ontario Family Court Review: Luke’s Place submission
A review of Ontario’s family and civil legislation, regulations, and processes by the Ministry of the Attorney General is underway. Submissions will be accepted until July 31, 2019.
The review is looking at three key issues:
- direct family law matters out of a combative court process, where possible;
- reduce the cost of the process to families and taxpayers; and
- streamline the processes to shorten the time to resolution.
Over the coming days, we will post the Luke’s Place submission in response to these goals. This is the first post of four from our submission.
Directing family law matters out of a combative court process
There is no doubt that Ontario’s family courts are overloaded. This results in excess financial costs to both the system and the families engaged with it. It can also lead to proceedings that take too long to reach resolution. Both have significantly negative impacts on families who turn to the courts for assistance when they are highly vulnerable.
Alternate dispute resolution (ADR) is an effective way for many litigants to resolve their family law disputes. Not only can this process be quicker and cheaper than litigation; it can result in better outcomes in which both parties feel invested and which they are more likely to follow.
However, cases where there is a history of family violence need to be approached differently. While ADR may be appropriate in some, it is not appropriate in all.
Relationships involving coercive controlling violence, in particular, are not well suited to ADR. These cases involve a pattern of behaviour by the abuser that, over time, leaves the victim living in constant fear of their partner, with little or no power or autonomy. While the abuser’s tactics may change post-separation, the abuse almost always continues. The ongoing threats, stalking, intimidation and coercion drives some victims back into the abusive relationship. Others quickly concede to any demands made by their former partner with respect to family law issues.
Neither the victim nor the abuser is well suited to ADR in these cases. The victim is, simply put, too afraid of their former partner to engage in any kind of negotiated process. The abuser seldom enters ADR with a willingness to negotiate or with a focus on the best interests of the children.
Even a highly skilled and trained ADR professional may miss the hidden cues from the abuser to the victim or be unable to effectively manage the dynamics of abuse.
Shuttle ADR can assist during the session itself, but it takes more than that to protect a victim from out of court stalking and harassment, abusive use of technology (spyware, obsessive texting, use of social media, etc.) and threats by the former partner. This ongoing abuse often leads to trauma in the victim, which has a significant and negative impact on their ability to engage meaningfully in ADR.
For these reasons, we believe any move to direct family law matters out of a court process must be undertaken with extreme care. Family violence experts must be involved at all stages to ensure the processes and those implementing them reflect a comprehensive understanding of:
- the dynamics of abuse, in particular coercive controlling violence
- the seriousness and frequency of post-separation abuse, including legal bullying
- the limitations of ADR in these cases, and
- emotional and physical safety issues for victims of family violence, including children
To ensure only appropriate cases are directed out of a court process, we strongly recommend that Ontario implement mandatory family violence screening for all family law cases. We refer you to our research report on screening, which can be found at:
Where the parties are legally represented, this screening could be conducted by their lawyer. Where they are not, this responsibility should rest with the appropriate court staff (Family Law Information Centre, duty counsel, Family Court Support Workers). This screening would be a precursor to a decision to move the case out of a court process. It is in addition to any screening that would be done by the ADR professional.
Finally, we want to be clear that we do not oppose ADR, including in some cases involving family violence. However, victims should never be or feel required to enter into ADR, and careful attention needs to be paid to any overarching plan to encourage a systemic move away from court processes and towards ADR.