Binding judicial dispute resolution is a good step forward for family law

May 14, 2021. That’s the date Ontario acknowledged and addressed the complaint that our family justice system is limited, inadequate, and problematic for too many family law litigants. The system is too cumbersome, complex, and costly. That it prioritizes proof over truth, creating an institutional barrier to justice for those who can’t afford to hire or keep paying lawyers to guide them through the labyrinth of rules and procedures. That’s the date of Ontario Chief Justice Morawetz’s practice direction announcing the pilot project for binding judicial dispute resolution.

Our existing system, with its rules and procedures known only to court practitioners and obscure to most others, has served us, lawyers, well. It allows us to win 5 out of every 6 cases where there’s a self-rep on the other side — a terrible statistic if we want a system that dispenses justice. And it scares people with everyday matters into hiring us, knowing that we set our fees based on how we value our service, not how the consumer values it. We’ve done this by insisting we need those rules and procedures for every case — regardless of complexity — if we’re to remain “competent” as defined by the rules of professional conduct and our insurers. But binding JDR, a judge-led initiative, revisits this thinking and opens an alternate path for appropriate cases.

One tool isn’t good enough

Binding JDR recognizes that we’ve been victims of Brumagem Screwdriver thinking — if all you have is a hammer, every problem looks like a nail, and you’ll use it to screw in a screw. But family law cases stretch along a continuum, and binding JDR recognizes that while one set of rules (our hammer) may make sense for complex cases, it isn’t appropriate or useful for less complicated cases. Binding JDR is an answer to whether the family justice system can have more than one tool to deliver a fair and informed resolution for “less complex” family law matters in a judge-centric forum.

What is binding JDR?

With binding JDR, we’ve crossed the Rubicon and taken an irreversible step that will have significant consequences. Binding JDR is a judge-created one-year pilot project in selected areas, a new form of family trial. It’s “a streamlined way to reach a final resolution of less complex family law cases.” At the parties’ request at a settlement conference, a judge can order binding JDR if they agree it’s appropriate for the issues involved. The parties agree that the same judge can hear the matter. Each party sets out their proposal to resolve the issues and the essential facts that support their position. The judge can ask questions and request additional information and may hear anything they consider important and relevant to the issues “regardless of the formal rules of evidence.” Each matter will take about 2 hours and result in an order.

Binding JDR acknowledges several truths the family law bar has been reluctant to accept. This new process answers “yes” to the question of whether we can create fresh, judge-based approaches for resolving family matters in a less adversarial and more cost-efficient way by relaxing the rules and looking at the process through the eyes and needs of the litigant, not the practitioner.

And binding JDR is a wonderful example of the LEGO approach to innovation. Not disruptive, tearing down or replacing the existing system, nor incremental, taking little steps to tinker with it. But constructive innovation keeps the core service and creates structures around it that both support what’s there and expand its reach and constituency. It’s thinking around the box.

Writers and judges have long accepted that the current family law system is broken. So have self-reps and people of modest means ravaged by legal costs. And lawyers who understand that a self-regulated closed shop approach can exist for only so long in a consumer-oriented world without adjusting to the market’s needs. Binding JDR adds another tool to our toolbox so that “less complex” cases can be processed without the stricter rules and procedures that the complex cases need.

Accepting the Hryniak challenge

In Hryniak v. Mauldin, our Supreme Court said: “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.” SCC Justice Karakatsanis, for the court, wrote: “Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.” She also wrote: “Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.” Hello binding JDR.

Binding JDR is a major, quite excellent, and first step into the possibilities available to address the SCC’s concerns. It contradicts the recent negative comments on this site by Michael Lesage regarding the initiative and accomplishments of our Superior Court of Justice and its chief justice. It shows Lesage’s criticism — so far as family law is concerned — was not fair. Binding JDR and the unfavourable comparison with New York State’s “Excellence Initiative” showed both a lack of understanding of what that was about and how fortunate Ontario is to have a judiciary taking the initiative to create binding JDR for family law if the bar isn’t. Forget complaining. Congratulations and thanks to our judges and our chief justice for binding JDR. An excellent step forward.