Lawyer Monthly - December 2021 Edition

2013. Now, Bill C-78 proposes sweeping amendments to the federal Divorce Act that follow the paths blazed by Alberta and British Columbia. It greatly expands the list of factors to consider in assessing the best interests of children. However, the radical improvements proposed by Bill C-78 are not going to reduce the number of litigants without counsel or increase the funding available to legal aid. Neither will they reduce lawyers’ fees, increase the number of family law lawyers in underserved areas of the country, or reduce the complexity inherent in the common law system. More importantly, they are not going to do anything to address the grotesque delays plaguing the judicial resolution of family law disputes. Data collected by the federal government shows that it is taking longer and longer to get to trial, as that more than half of Alberta divorce files were four or more years old in 2015. All the above shortcomings are taking a toll on the efficiency of a court system dealing with a growing backlog of cases and the current crisis of the COVID-19 pandemic has further aggravated an already overwhelmed system. The pandemic has had crippling effect on family litigation, as the court system has been unable to implement a mechanism to sustain and WWW.LAWYER-MONTHLY.COM | DEC 2021 MY LEGAL LIFE - CHERYL CORDEIRO move forth with motions, hearings, and trials within the virtual realm. How do you expect to see the Canadian family law sector change in 2022 and beyond? It seems to me that we must approach family justice from a fresh perspective, and critically examine all potential alternatives, in fact, we should consider removing family law matters from the courts altogether. These are disputes that could be moved into a specialised administrative system offering both adversarial and non-adversarial dispute resolution alongside, along with providing education on parenting after separation, child development, conflict management, and social services such as housing and employment support, financial and mental health counselling, parenting assessments and similar services. Such an administrative system should be interdisciplinary and explicitly aimed at promoting the well-being of children, reducing conflict, and promoting parents’ ability to cooperate with each other. Its rules, policies and forms should be written in plain language, tailored to the unique needs of families living apart and the extent of the adversarial and 26 “ Typically, neither bar nor bench has much training in the sensitive psychosocial implications of family restructuring after separation. ” non-adversarial processes provided by the tribunal and commission should be genuinely proportionate to the circumstances of each family, and complexity of the issues in each dispute. What measures regarding compulsory mediation in family law currently exist? Are they effective? When the FLA 1996 was presented to Parliament, The Law Commission put forward proposals for reform with the main purpose of encouraging mediation. Mediation would allow parties to eliminate allegations of fault, reduce hostility and further resolve their issues – such as childcare and settlements of a monetary nature – before legal intervention. Mediation has been encouraged by governments for over twenty years, which is becoming a more standard practice within family law litigation. It is often the mandate that, prior to litigation, the parties are required to attend one session of mediation. However, adoption of mediation in this format disregards the very foundation upon which mediation is built upon: a voluntary form of dispute resolution founded on the pillar of self-determination. Thus, utilising