CLIFF’S NOTES: An Idea to Think About: Judge Focused Mediation and Decision Making

I have been thinking about having those judges who preside over family matters in Ontario’s courts expand their duties to include mediation, followed by the ability to render a decision, should the parties be unable to reach agreement.

Let me back up for a moment. Those of us familiar with the court system understand that it has been, for many years, far too expensive for middle-class people. With recent cuts to Legal Aid duty counsel, the family court system has put up another “stop sign” for those who are not middle-class earners. Even for the wealthy, legal fees have increased so much that anything longer than a two or three-day trial costs thousands.  And in the end, (whenever that is, because of enforcement issues) the experience often leaves one or both parties in a financially difficult situation.

At FDRIO’s Annual Conference in November 2019, Ontario’s Attorney-General, Doug Downey, acknowledged that 50% of people who appear before a Family Court judge are self-represented or, better said, unrepresented. Some commentators have put the number as high as 80%; this may well be so, if cases in which only one side is represented are included.

In spite of the well-meaning efforts of many to educate unrepresented parties about the court process, those litigants remain, in the majority of cases, bewildered by just about everything that happens in court. Court appearances are frustrating for them and for the judge. It’s a little like inviting people to play a high-stakes, complex game without an understanding of the rules. This is not real access to justice.

So, the middle class, the poor, and even those with some discretionary income, have an access-to-justice issue.

The case management system works well – but only to a point. The courts are clogged with long motions in which each side requests far too much relief at the interlocutory stage. As well, trials continue, often for more than a week, even though the outcomes are clearly predictable from day one. The problem in these cases is that unreasonable parties take valuable judge time away from more reasonable litigants who really do need judicial guidance in settling their differences.

None of this is news; yet the problems get worse, with seemingly very little help on the way. Small increases in complement and newly-built courtrooms are not enough in the face of increases in population and higher fees.

So, now to the mediation/judicial decision idea. The Family Law Bar has embraced mediation as an effective problem-solving process. It has even offered arbitration to resolve issues when mediation fails. It seems to me that our public courts could offer a similar process. Rule changes could allow litigants to opt-in [consent] to having their case mediated by a judge who would have the authority to make a final decision on issues where mediation is not successful. Those who did not wish to mediate could continue through case management towards a trial. The choice would be voluntary on the part of the litigants.

The crucial change here is that the judge would make a final decision based on what had been discussed. As I have noted earlier, the outcome in most cases is often predictable. I have not proposed a mediation/arbitration model because I do not think judges should become arbitrators; such a system might invite even more litigation than now occurs.

Many will say this proposal is too complicated. What about evidence for an appeal if the judge makes a decision? What about independent legal advice if a mediated agreement is reached? Will a judge have to worry about screening and power imbalance? Should appeals be limited in certain cases? And so on….

These questions/problems are difficult, but we have a very able Bench and Bar. Most family law lawyers have had experience with mediation. So have a lot of new judges. There are many who, working together, could come up with solutions.

Access to justice in our courts will only be a dream for many people unless we come up with solutions to change what we are doing now. I would welcome and invites your letters to the Editor on this subject, either pro or con. Please feel free to propose your own ideas.

Domestic Violence

Screening for domestic violence is a very important part of the work that many mediators do. The new Canadian Divorce Act specifically mentions domestic violence as an important factor to be taken into account. Therefore, it was interesting to read, in the October 12, 2019 issue of The Economist, that China enacted a domestic violence bill a short time ago. The idea was to help abused women obtain a divorce. Unfortunately, given the importance of tradition to the Chinese leader and government, few women are being assisted by the new law. Judges, fearful of the government, and, in some cases, the spouse, are pretty much ignoring the new law. The article says that proponents of the new law have had their hopes dashed after about two decades of campaigning for such a law.  China has called for an end to all forms of violence as a human rights issue; however, application of this aim has proved difficult.

Hardball Tactics Can Result in Costs

In Mackie v. Crowther, 2019 ONSC 6431 (CanLII), Justice Pazaratz gave the mother all the costs she requested because the father insisted he would take their nine-year-old child to a hockey tournament that fell on the mother’s access weekend. The parties had joint custody. The parties were to split the hockey tournaments, but the father was adamant; he sent the mother an e-mail informing her of the plan he suggested.  It was “his way or the highway”. He also had his lawyer send a letter to the mother’s lawyer “announcing” the father’s plan.

On the morning of the motion, the parties resolved the issue, so that the mother could have access as planned on her weekend. The mother still worried that the father might not return the child, after his Thursday evening scheduled access visit, so that her plan to go to the hockey tournament would not happen.

In the judgement, Pazaratz, J., who has a gift for speaking directly, describes the facts as “simple but outrageous”. He says he does not blame the father for sending ill-advised emails to the mother; “He was wrong, but parents are allowed to be wrong”. However, he criticizes the lawyer for sending a letter, “which so openly and flagrantly shows contempt for an existing court order”.

After reviewing the offers to settle submitted by the mother, the judge awarded her almost full recovery costs of $3,000. He wrote:

[21] …This is one of those rare cases where full-indemnity costs is appropriate. The

  did everything possible to avoid litigation. The [father] created and perpetuated the problem by insisting on something he was not entitled to, notwithstanding the needless anxiety and uncertainty this was creating for the child. And notwithstanding the needless litigation burden he was imposing on the custodial parent.

[22] Unreasonable parents need to understand that hard-ball tactics can backfire in a very expensive way.

The moral of the case is to obey Court orders or move to change them. Do not breach them.

Also of interest in this case is that the mother sought a police enforcement clause to make sure that “there won’t be any more uncertainty or jeopardy with respect to the hockey tournament weekend” [14] Justice Pazaratz did not agree that this was a good idea for the reasons set out in par. [14]:

1. If our goal is to protect children, why would we select an enforcement mechanism which will inevitably harm the child?
2. Police involvement in dynamic parenting disputes never helps. Nothing could be more upsetting for a child caught between warring parents than to have police officers descend on an already inflamed situation.
3. Children derive no benefit from witnessing their parents getting into trouble with the law. They perceive police as being there to deal with “bad guys”. No child wants to think of their parent as being a “bad guy”. And no parent should place a child in such an emotionally conflicted position.
4. If the objective is to prevent or discourage inappropriate parental behaviour, we must create sanctions which scare offending parents without scaring the child.

When thinking of putting a police provision in an order or agreement, please keep these points in mind.

Kudos to Phil Epstein

Phil recently announced that his partner and son-in-law, Aaron Franks, would be taking over the writing of his weekly case digest, come the new year. Phil deserves a great hand from the legal community! The digest was informative and witty. Phil was generally supportive of the decisions where he could be, and always direct when he felt errors were made. More often than not, he was cognizant of the good work judges across Canada were doing. When there was praise to give he gave it willingly. The digest will be in good hands with Aaron. I wish him luck; it is a lot of work.

There are other facts about Phil that are not as well-known as the digest. Until about a year ago, Phil was a frequent lecturer and educator of judges through the National Judicial Institute. He appeared at almost all Family Law Educational Programmes. His presentations were as good as his Newsletter and, often, very funny, especially when he “jousted” with Aaron.

As a young lawyer Phil became Head of the Family Law Section of the Bar Admission Course after Jim MacDonald became the Director. At the same time, Phil and Ken Cole built their family law firm into the largest in Canada.

What is even less known about Phil is that he was the driving force behind many celebrations recognizing the careers of retiring members of the Family Law Bar.  He also extended help to a number of lawyers who were having difficulty in their practices and careers. He has been a leader of the Family Law Bar in Toronto, and across Canada.

As I understand it, he will still be at work the day after you read this – taking on interesting cases and running a very busy mediation practice. Thanks, Phil. Good health and good luck in your continuing practice!

NOTE: An interesting appeal from an arbitrator’s decision was recently released Rosenberg v. Yanofsky, 2019 ONSC 6886 (CanLII). I will write about it in the next Newsletter if others have not already covered it.

Till next time….