Court should not be first stop in divorce and custody disputes, he says

Ontario Chief Justice Warren Winkler is calling for “dramatic” changes to the justice system that would deny family law litigants access to the courts unless they go through mediation first.

In a speech Tuesday to mark the opening of the province’s courts for 2010-11, Winkler said mediation offers a potentially faster and cheaper way to resolve divorce and custody battles, including a less-complicated process for getting information such as a spouse’s financial statements.

“Accordingly, only in the event that the alternative dispute resolution process is unsuccessful would access to the costly, time-consuming, adversarial and sometimes acrimonious court process be available to litigants,” he said.

In his remarks, delivered in a University Ave. courtroom filled with judges and dignitaries from the legal world, Winkler said he questions the value of continuing to “fine tune” the existing system and believes a new approach is required.

“I think the time has come for a fresh conceptual approach to resolution of family disputes in Ontario,” he said.

In 2008-09, there were 313,470 family law hearings in the Ontario Court of Justice and the Superior Court of Justice, according to a report by the court services division of the attorney general’s ministry.

Between 85,000 and 90,000 new cases are opened every year.

Compelling litigants to enter into mediation or arbitration would constitute “a fairly significant shift in policy” and “raises all sorts of questions for me about who would pay for this,” said Kelly Jordan, a Toronto family lawyer.

Some senior family law lawyers charge as much as $600 an hour to serve as mediators.

While mediation is mandatory in most civil cases in Toronto, Ottawa and Windsor and results in full or partial settlements about 40 per cent of the time, it is not compulsory in family law cases anywhere in Canada.

Requiring people to go through mediation or arbitration (both are considered “alternative” forms of dispute resolution) before having access to the courts is “not a bad idea at all” because the process typically results in a lot of cases getting “weeded out or settled,” said Malcolm Kronby, a Toronto family law lawyer who also conducts mediations and arbitrations.

But the process is much more likely to be effective, he suggested, if the parties enter into it voluntarily.

If imposed during an early stage of a family law dispute, spouses could still be too angry with each other to cooperate, Kronby said.

Jordan suggested that women’s organizations would likely object to mediation in cases in which spousal or child abuse is alleged.

Mediation has become mandatory in some parts of the United States. It is also compulsory in Australia, where only 5 per cent of family law cases now result in a trial, according to a report last year by Sydney’s Sunday Telegraph.

In Ontario, judges can require spouses to attend mediation, but it happens rarely.

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Rather than “one-stop access to justice” in any form, be it mediation or the more conventional trial, Jordan said she believes “a triage system” could be the answer to many of the family court system’s problems.

Cases could be assessed at an early stage and “streamed” in the direction that suits them best, whether that is a courtroom or a mediator’s office, she said.

Providing “a judge in a courtroom” in every case “is not the best approach, either,” said Jordan.