Unified family court system needed across Canada to deal with ‘crisis’ in system: Advocates Society

According to a new Advocates’ Society report, the unified family court model should be implemented across Canada to alleviate the crisis in a court system meant to resolve disputes surrounding divorce and family breakdown. 

“Across Canada, many families cannot access the courts in a timely manner, which can leave families and children in difficult – and sometimes dangerous – situations,” says the report, released June 26. 

However, the society says a solution to this problem already exists in some parts of the country – the unified family court – and should be expanded. These court systems specialize in all family law issues in one place and provide families with additional support services. 

“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 who is treasurer of The Advocates’ Society and chair of its UFC task force.  

“Many people who separate in Canada are able to work out issues between themselves or with the help of counsel,” she says. “But some people cannot. And when these issues come to a crisis, they require real-time attention. 

“Unfortunately, in many jurisdictions in Canada, these matters cannot get real-time attention. For example, in some courts, it can take eight to 12 months before you could get before a judge. 

“The family court system must address core needs in real time for families experiencing a breakdown,” Gibb notes. Not giving this full-time attention is a failure in the system because it “leaves families and children vulnerable and can cause long-lasting harm.” 

Gibb says that in many areas of Canada, two different courts deal with family law issues, which “creates confusion, inefficiencies, and greater costs” and delays that “hurt families already in the midst of a breakdown.” 

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. 

“In other words, some families must navigate multiple courts to resolve their legal issues, leading to confusion, duplication, inefficiency, delays, and greater costs.” And while most people going through a separation behave decently, Gibb says, “there are situations where some do not, and there is a power imbalance,” and strategically use the court system to inflict pain on their ex. 

One member of the Advocates Society describes this strategic use of the current system this way: 

“I have a family case that was proceeding in the Ontario Court of Justice, which had to be transferred to the Superior Court of Justice because the other party made a property claim against my client. The transfer resulted in greater costs to my client and a delay of almost one year because of the need to prepare and issue new pleadings and to wait for a case conference date in Superior Court. The delay would have been longer had my client not consented to the transfer (which they did to avoid having to wait for a motion date to argue against the transfer and further legal fees). During this time, the case cannot meaningfully advance, and my client is subject to interim support that arguably favours their former spouse.” 

The UFC model, first created and piloted in the 1970s to consolidate jurisdiction into one court, is “more efficient and better equipped to respond to the unique needs of Canadian families and children than Canada’s traditional two-tiered family court system,” the report says. 

Yet only three provinces – Nova Scotia, New Brunswick and Prince Edward Island – have fully unified their family courts, while three provinces – British Columbia, Alberta and Quebec – have no UFCs. 

Four other provinces (Manitoba, Saskatchewan, Ontario and Newfoundland) have partially implemented UFCs in specific geographic regions. In these provinces, rural and remote areas are often not unified, and even some major population centres (Toronto, Brampton and Mississauga in Ontario, for example) are not served by UFCs. 

The Advocates’ Society says in its report that it is time to expand the UFC system across Canada, with federal and provincial governments prioritizing expanding the UFC model. 

Gibb points out that implementing the UFC nationally may present challenges. Still, it is a “key first step to improving our family justice system to help families in their time of need better.” 

Gibb says the lack of unified family courts across large swaths of the country creates genuine consequences for Canadian families. She notes that families often need the courts’ help to resolve time-sensitive issues, including critical matters like family members’ safety, children’s health and well-being, parenting arrangements, housing, and money for necessities like food. 

However, increasingly, timely access to the courts is not possible, with the result that families and children may be left exposed to family violence, extreme financial stress, or other untenable situations that can have lifelong consequences. 

Gibb notes that family courts should be designed differently to address the unique features of family disputes. For example, judges who hear family law matters need expertise in areas that fall outside the scope of traditional legal training. These include child development, family dynamics, gender bias, family violence, substance abuse, child abuse, sexual violence, coercive control, and the psychological consequences of family breakdown. 

As well, family law cases are different from other types of civil law cases because: 

• the majority of disputes involve children, who are vulnerable and generally unrepresented in the proceeding; 

• the parties are frequently unsophisticated, one-time, unrepresented litigants; 

• there can be more emotional and values-driven factors underlying the dispute, making resolution more difficult and 

• the parties’ relationships are often ongoing and must be sustained after the legal dispute has ended. 

Gibb adds that UFCs are more than a “one-stop shop” for family cases because they improve access to justice in other ways, such as:  

• providing litigants with specialized judges who have training and expertise in family law; 

• adapting court procedures to fit the unique needs of families; 

• ensuring early triage to prevent litigation when appropriate; 

• encouraging early intervention and non-adversarial dispute resolution; and  

• case management when appropriate; 

Gibb admits that the UFC system is “not a perfect solution,” but it is a “foundational first step” to a more just family law system. Among those challenges would be having the two levels of government work together to unify the family court. Staffing could also be an issue, but that is a problem that goes beyond just the legal system for family law. There also would be the matter that judges moving to a unified system would need to have the pension rights related to their current positions respected during the integration process. 

But these challenges are all surmountable, Gibb says. “We know we can do it because we have already done it in some parts of Canada.” 

She adds that there appears to be some “momentum of support” for a unified system and hopes the society’s report will help solidify support. “We need everybody to be on the same page and work towards a practical solution as a team.”  

Gibb adds that a UFC is needed across Canada because many Canadians involved in the current system are left with the belief that “family justice” is merely aspirational, or worse, that the family justice system is exacerbating the conflicts it should be resolving and harming the families it aims to help. 

The UFC model “would help restore” public confidence in our family court system.”