Kirk Makin wrote the following in the Globe and Mail March 25, 2011....
One of Canada's best hopes for family-law reform is Ontario Chief Justice Warren Winkler: He is influential, has a track record of reform and has sounded a steady drumbeat for change. And his patience is wearing thin.
“At a certain point, let's not adjust any more,” Chief Justice Winkler said from his home in rural Ontario. “This has been studied to death. We have to sit down with a white piece of paper and redesign the system. It has to be made cheaper, faster and simpler, without convoluted rules.”
Known for his tell-it-like-it-is attitude, he has heard many complaints from judges and lawyers since his appointment in 2007. “Everywhere I go, there is a constant refrain: The family-law system is broken and it's too expensive,” he said. “My strategy has been to get a discussion going. I'm the bully pulpit. But I get frustrated when not very much happens.”
A former trial judge
A few years ago, he designed a process that slashed the Toronto civil-case wait-list. “We went from waiting 37 months to a trial to pretty much having one whenever you were ready,” he said. “As soon as you have a courtroom with the lights on, the settlement rate skyrockets.”
Chief Justice Winkler's manifesto for change, which he has been advocating for about a year, is based on a premise that most litigants cannot afford the financial and emotional toll of navigating a cumbersome process that leads from separation to the final dissolution of a marriage.
His model system would see a “triage” judge hear the gist of a case as soon as an action is launched. The judge would decide which track it is best suited for: mediation, traditional court processes, quick movement to decide child custody, and so on.
Most cases would move rapidly toward mediation with the same judge shepherding them along. “It's hugely costly to see a different person every time you go in,” Chief Justice Winkler said.
Even then, the number of forms, steps and rules in the family-law system entangle lawyers in paper trails. They also make the system impenetrable to many self-represented spouses – an estimated half of all litigants.
“The family court rules look like a Boeing manual for an airplane,” Chief Justice Winkler said. “It's the hours that are the killer. We have to make the system faster, less technical, and not have these convoluted rules.”
Inevitably, cases that move through the system faster become simpler, since there isn't time for as many motions. “As soon as the trial date is a couple of weeks away or a month away instead of three years from now, the motions all go away,” he said. “I used to say: ‘You can have an adjournment if you die or if you promise to. But otherwise, I'm not adjourning this case.' ”
Judges will have to play a role in rigorously policing parties who dilly-dally. “A trial date cannot be negotiable,” the Chief Justice said. “Here is the timeline you are on. If you don't meet it, your world is going to come apart.”
Martha McCarthy, a veteran Toronto family lawyer, said her bar has warmed to the attention from Chief Justice Winkler. “He's a bit of a rebel,” she said. “What he is saying is brilliant.”
She said the rules governing family court were created with the best of intentions, “but they have turned out to be not workable. The system is too complicated and expensive and we are buried in forms. Looking at the whole system again may not go over well with a lot of people, but it is revolutionary.”
Ms. McCarthy said her bar's main reservation about what Chief Justice Winkler initially advocated was his emphasis on mandatory mediation – a process that can put domestic-abuse victims across the table from their abusers in a mediator's office.
However, bar leaders met with Chief Justice Winkler and found him willing to modify his proposal from mandatory to “presumptive” mediation, in which judges can take suitable cases and home in on particular areas in which to create a peaceful resolution.
“We may not solve everything, but we may resolve two-thirds of it,” he said. “If we only have to litigate one little issue that's left, it can take just half a day. It saves a ton of money.”
The Chief Justice is also keen on the widespread creation of unified courts that would bring aspects of federal jurisdiction (divorce) and provincial procedures (access and custody; division of assets) under one roof.
“People wouldn't be running from one court to the other,” Ms. McCarthy said, approvingly. “We would have specialized judges.”
Chief Justice Winkler said the sort of redesign he is advocating means that governments have to co-operate and lawyers must commit themselves to less courtroom brawling and more mediation. He sees his role as being both a catalyst to get people talking about the issue and a participant in an ongoing, high-level dialogue with attorneys-general.
Given his stature, Chief Justice Winkler's voice adds force to a growing clamour for reform. Though there have not been any bills tabled on this as yet, his proposals will probably fuel bar committee reports and presentations to ministers of justice.
“This is an area that cries out for change, but it just needs resolve,” he said. “If legislators pass the laws, rules will be made to apply that law. Then, court administrators can administrate those rules. Bingo, bango, bongo, it all trickles down.”
Kirk Makin is The Globe and Mail's justice reporter.
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