Thank you.
First of all, thank you so much for the invitation to be here. It strikes me that as members of the committee, you probably already know that lawyers really like to give their opinions. I'm going to say that I'm no exception, so here I am.
I thought I'd just deal with a couple of micro issues first, and those are issues of clarification and interpretation. I'm going to concentrate my remarks on things that I think others have perhaps not mentioned. Those relate specifically to the legal adviser and to family dispute resolution. I'm going to concentrate on those things. Then I have a broader issue and concern that I'm going to raise with you as well.
Just by way of some context for making these remarks, like Rob Harvie, I've been practising family law for 32 years, and we've both lived to tell the tale. It is an area of law that is challenging. I have also been quite involved with the Law Society of Ontario. I served as a bencher. The law societies, as most of you probably know, regulate the profession in each province and territory.
I was head of the Law Society of Ontario for two years, which governs, now, about 50,000 lawyers, and is the only jurisdiction in Canada to govern independent paralegals, who have scopes of practice that are circumscribed. That is why I want to first of all commend the work that's done on the definition of “legal adviser”. There is a significant access to justice issue in family law. Both Ontario and British Columbia are looking at the issue of whether properly trained and regulated independent paralegals, known by another name in British Columbia, may provide family law services in the future. It is very important to maintain the broader definition of “legal adviser” and not just limit it to lawyers.
With respect to another issue regarding the legal adviser, the legal adviser has particular requirements to fulfill certain duties under the new legislation, duties that are very broadly set out and are much more onerous than before. In that respect, I'd like to make two specific comments.
One is that it's not clear in the bill when the obligation of the legal adviser arises. It's really important, I think, if we are going to be obliged to ensure that the parties know what their obligations are, and we can rest reconciliation and other issues, that those things are done at the beginning and not when the parties are signing the divorce application. By then they have already reached an impasse with their spouse, and frankly, then it really is going to fall on deaf ears. I would strongly encourage you to make it clear when that obligation on the legal adviser arises.
The second thing that I'd like to suggest to you is that legal advisers ought to be subject to a sanction in the event that the court finds that there's been a breach. If they didn't advise their clients, then there should be some remedies for that, and lawyers and paralegals should know to take that obligation very seriously. They have an obligation now under section 9 of the act; in my experience, at least, it's honoured more in the breach than in the observance, so I strongly encourage you to consider some sanctions.
I'd like to touch on what I think is the most important portion of the bill, and that is the ability to order family dispute resolution. However, I have a couple of concerns with respect to that. Again, they're clarification issues, but I think they're worthwhile raising.
Because the definition of “family dispute resolution” is that it can be for any matter in dispute, but the only mention of it in the bill as to when a judge can make an order is under proposed subsection 16.1(6), which is the parenting section, it seems to me that there will clearly be, for parties who want to have a dispute, a dispute about whether or not that can be ordered for issues to resolve support. I strongly encourage that the legislation clarify that it can be ordered in any matter, not just in parenting matters.
The other thing that Professor Bala and Julie have already mentioned is the issue of adding the role of a parenting coordinator to the non-exhaustive list of things that can be in a family dispute resolution process. Once there is a parenting plan in place, it is very important for the mundane matters to be dealt with quickly and efficiently so that conflictual parents are not going back and forth to court indefinitely.
There is one much broader issue that I would like to raise: what happens before a court makes an order for family dispute resolution. There are three parts to this: one, the cost of those services; two, the issue of domestic violence and power imbalance; and three, if it does apply to all issues, including the financial issue, so that a judge can make that order with respect to the financial issues, we need to deal with the issue of financial disclosure being full and complete before people are sent off to mediation.
With respect to the issue of family dispute resolution, it is important for people who don't practise in the area to understand that this is mostly provided by private providers. Justice Bonkalo, the former chief justice of our provincial court, recently completed a study with respect to whether paralegals could provide some family law services. She cited in her report that 57% of all litigants in the Ontario courts were appearing on their own, without counsel, and when asked the reason, they said it's because they could not afford counsel. It is extremely important, before a judge makes an order, to clarify that services have to be available and they have to be available at either reasonable cost or no cost.
I appreciate that this is a shared jurisdictional issue between the provinces and the federal government, but in my view the centrepiece of this bill is the ability to order people to go to family dispute resolution. In the event that they can do that, we must make sure that the people who need it the most are in a position to access those services. Without some type of assurance with respect to that, the legislation will not have the effect that is intended.
I would add that there should be criteria for the judge, and frankly, for the lawyer as well, as to when a family dispute resolution order ought to be made. The criteria should include that anybody who is going to be ordered to go to family dispute resolution should be subjected, first, to domestic violence screening. Frankly, in my view, that is not something that is appropriate or a good use of a judge's time to do; it requires someone specialized. Again, we come down to who is going to do that and who is going to bear the cost. However, it is extremely important that people be properly screened before they're sent off to mediation.
The second issue is to consider what family resources are available to the litigants.
Lastly, I suggest that an order be made only after a judge is satisfied there has been sufficient financial disclosure to allow full and complete discussions with respect to support.
There is one last matter—because, of course, we always want to have one last thing. It is this: I urge the committee to consider how we're going to determine whether family dispute resolution is working and how we're going to determine when it works best. I can say, as someone who has been very involved for a number of years with trying to move ahead with family law reforms, that what we are sadly lacking is good research about which kinds of dispute resolutions work best, how the services are best delivered, at what stage they're best delivered, and the cost-benefit analysis.
Those things are always lacking when we're trying to make progress with family law reform. ln the event that we are able to track that information and that data, we will actually be able to move the system forward, as Rob suggests, in a much more efficient way.
I really encourage people to think about the partnership with the provincial government and what's necessary to do there.