Easing separation by unifying Canada's two-level system for family courts

He describes the system for dealing with family law in BC and Alberta, where he is licensed to practise, as being in a “state of crisis,” especially if cases are deemed “non-urgent.” He notes that family law cases in Alberta are already booking well into 2025.

Sixta says a unified family court system that brings these two courts together could likely settle family law cases sooner. These court systems, first piloted in the 1970s, specialize in family law issues in one place and provide families with additional support services. 

However, Sixta or his clients are not eligible for that option. That’s because BC and Alberta (along with Quebec) don’t have a unified family court system, unlike Prince Edward Island, New Brunswick, and Nova Scotia, which do, or even a partially unified family court, like Manitoba, Saskatchewan, Ontario, and Newfoundland and Labrador. 

According to an Advocates’ Society report released in June, the unified family court model should be implemented across Canada to alleviate the crisis in a court system that is supposed to resolve disputes surrounding divorce and family breakdown.

“Family law goes to the heart of Canadian society because it affects the health, safety, and well-being of families and children,” says Sheila Gibb, a partner at Epstein Cole LLP in Toronto,  treasurer of The Advocates’ Society, and chair of its UFC task force. 

Jennifer Gold, a partner with Wood Gold LLP in Brampton – a part of Ontario that doesn’t have a UFC in place – says it is “difficult to explain” to clients why resolving their family law case can take so long. She points to a recent case where she could get a date for a case conference within three or four months of asking, “but then we were told the next available date was a year away.”

The two levels of jurisdiction in most provinces that lawyers and litigants have to navigate “is a complex system,” she says, and is even more challenging with the increasing number of self-represented litigants.

“Our court system is designed for lawyers and judges, not for lay people trying to represent themselves,” Gold says, noting that affording a lawyer or accessing legal aid is becoming more difficult, leading to more people representing themselves in court on family matters.

Also, many perceive family law issues and conflict resolution as simple, Gold says. “They underestimate the complexities. They may think they can represent themselves, but at the end of the day, they experience challenges, leading to further delays that backlog the system. So, it’s a vicious cycle.”

Shannon Beddoe, who practises family law at McCarthy Hansen & Company LLP in Toronto, says that family law disputes “lend themselves to time sensitivity” simply because of what needs to be resolved.

“The most pressing issues often arise early on in the process of parents separating, and there’s a dispute about who should be caring for the children, and for how long and when,” she says. Beddoe adds that sometimes couples can’t separate until an interim parenting schedule is determined, which could require the courts’ services and take months to resolve. Then there are disputes related to support payments and how soon that money will get flowing, or even questions over who gets exclusive possession of the family home. 

“These are real people, and these questions over family matters are central to their lives,” she says. “They are living
the dispute every moment of every day, and it’s stressful on everybody, children included, about moving forward and starting new lives.”

She thinks of one case that has been going on since March. It’s now approaching fall, “where everyone is still living under the same roof, there is no schedule, no support, and the court system is needed to adjudicate since both parties can’t agree on anything.”

Beddoe agrees that the division of responsibilities between the various court systems and the time that goes into navigating through them can be stressful for unrepresented litigants and even trained family law practitioners. This adds more time and resources to settling things and can be used strategically when there is an unequal balance between the parties, and one wants to inflict pain on their ex.

Canada’s Divorce Act is a federal statute that regulates divorce, parenting, and financial support claims. Each province also has legislation governing property division, parenting, support claims for married and unmarried couples, and adoption and child protection. 

Federal and provincial laws allocate jurisdiction over specific family law matters to different courts. Superior courts hear divorce claims and property division; claims regarding spousal support, child support, and parenting, among others, may be heard by either superior or provincial courts, or sometimes both. Provincial courts hear child protection matters. 

Family law lawyers point out that a unified family court would allow for using judges who have expertise in this practice area as well as skills in areas such as child development, family dynamics, gender bias, family violence, substance abuse, child abuse, sexual violence, coercive control, and the psychological consequences of family breakdown. 

Geoffrey Carpenter, a family law practitioner and Law Society of Ontario-certified specialist in this area, typically deals with courts in the Halton and Peel regions of Ontario, both of which do not have a UFC system, and Hamilton, which does.

“I see a significant difference in the two systems I have experienced. The unified family court has significant advantages because the judges are family law specialists, and the court is set up to handle family law.” Carpenter adds that a case management system allows the same judge to handle all steps of the case. And there is a more integrated alternative dispute resolution model. “And when there is overlap in the jurisdictions, there’s a huge benefit in having one place to sort it out.”

Says Carpenter: “There are huge advantages to a unified family court – you’d have difficulty finding a family law lawyer who would not prefer such a model. It is a significantly better process, both in terms of ensuring that we have expert subject matter and expert judges and in terms of being more intelligently designed.”

Carpenter points out the challenges in unifying the current system to create one unified family court. Staffing issues are one concern, as the different pensions and salaries for judges and other court employees would need to be integrated into one system. He feels that governments are responsive to the idea, but the logistics are challenging, and other parts of the court system could also use reform.

But these challenges are all surmountable. As Gibb of The Advocates’ Society says: “We know we can do it because we have already done it in some parts of Canada.” 

Canada’s patchy unified family court system