Canada’s family law system was in trouble before the COVID-19 pandemic, when the entire justice system was upended for months as courts sat idle during sweeping lockdowns under public health mandates, magnifying the problems.
Courts are stymied by a lack of staff and judges. There were 79 vacancies for federally appointed Superior Courts and Courts of Appeal positions across Canada as of June 2023. The resulting delays are pervasive, infiltrating courtrooms at every level in every jurisdiction of the country. Canada’s most populous provinces — B.C., Alberta, Quebec and Ontario — experience the worst delays.
Julie Tyas is Principal/Lawyer at Tyas Family Law in Toronto. “There was a big shift to remote filing and attendances,” she notes. While a hybrid model blending online and in-person proceedings is evolving, many court hearings, such as conferences, are still in-person, while she believes many lawyers would prefer virtual attendances. “The pandemic revealed massive flaws in the system. The court system is antiquated. Forms are automated but are often too narrow and could be broader. Many self-represented parties have a difficult time navigating the electronic system implemented in many jurisdictions across Ontario during the pandemic.”
She sees a more litigious mindset emerging. “The pandemic overturned families with young kids. Stress bred animosity.” She sees increased acrimony between lawyers on both sides of a case, and judges are getting impatient too, she feels.
Pandemic lockdowns have generated pent-up demand. Estranged couples had no choice but to stick it out. Many sources show there has been more domestic violence. “Expect a decade of work,” says Ms. Tyas.
Despite some improvements, Ms. Tyas observes, “The court backlog is huge, exacerbated by the pandemic, particularly in Brampton. Parties can wait 10 months to book a court date.”
In June 2023 the Advocates’ Society published a report about endemic court delays across Canada, Delay No Longer. The Time To Act Is Now. A key observation in this report is that “reliable data about the magnitude and characteristics of the delay are challenging to find and even more challenging to interpret”, although lawyers observe the problem daily. There is ample anecdotal evidence available, some quoted in the report:
“As a family lawyer, I have to tell my newly-separated clients that I cannot get court orders that will help them leave intolerable (and, in some cases, abusive) home situations for many months or more than a year, such as orders for temporary parenting or support. If they need the court’s help on multiple issues in order to move out, it is considered a ‘long motion’, which are booking well over a year away — and this is for temporary relief, never mind a trial. Clients often start court applications earlier than they would otherwise, just to start the clock rolling. The financial and personal costs are unbearable for most family litigants.”
Another factor, due in part to court delays, is affordability. The number of people self-representing in family court has been on the rise since at least 2014, according to Statistics Canada. In the 2019-2020 fiscal year, 58 per cent of litigants in family court across the country were self-represented, and experts say that number is closer to 80 per cent in urban centres like Toronto. “Family law is the area in which we see the greatest pressure on the system,” Julie Macfarlane, a law professor emerita at the University of Windsor, told CBC News. Her research showed most people who appear in court without a lawyer can’t afford one or have run out of money to continue paying a lawyer.
To address these issues, in December 2022 the Law Society of Ontario (LSO) approved the creation of a Family Legal Services Provider (FLSP) license. Paralegals who complete the specified training will be able to assist clients with process navigation, completing applications for joint and uncontested divorce and motions to change for child support, based on the payor’s income and excluding special and extraordinary expenses. The proposed scope also includes responding to support proceedings and court appearances on motions to change, subject to the limitations described previously.
Chief Justice Geoffrey Morawetz of the Superior Court of Justice and Chief Justice Lise Maisonneuve of the Ontario Court of Justice said the FLSP license “will improve access to justice and serve the needs of vulnerable family law clients.” The LSO’s Access to Justice Committee will review the license within three years of implementation to determine its impact.
